Michigan Criminal Lawyer Blog

We have received a barrage of inquiries lately regarding the law which makes someone "criminally inadmissible" in the country of Canada with a drinking and driving conviction according to Section 19 (2) (a.1) of the Immigration Act of Canada. The law applies to foreigners (United States Citizens) who cross the Canadian border for work, education or recreation.

Persons convicted of drinking and driving (Operating while Intoxicated or Impaired) are considered "criminals" in Canada regardless as to whether it is a first offense or one which does not involve any injury or damage to property.

Criminal Inadmissibility: Ten Year Ban From Crossing the US Border into Canada

A person convicted of only one non-serious offense may be deemed rehabilitated after ten (10) years have passed since the completion of sentence and probation without making any application.

Criminal Rehabilitation Applications May Be Filed After Five (5) Years

Again, a person is deemed criminally rehabilitated after ten (10) years since completion of the sentence for the conviction. If the person wants to get into Canada between the 5 to 10 year timeframe, an application of criminal rehabilitation will need to be filed. A person with a drunk driving conviction may be deemed criminally rehabilitated and file an application to enter Canada if the person meets the all of the following requirements.

• Committed an act outside of Canada that would constitute an offence under a Federal statute.
• Been convicted of, or admit to committing the act.
• Five years must have passed since all sentences have been completed, including jail, fines and probation.

If five years have not passed since the completion of the sentence, a person can apply for a Temporary Resident Permit (TRP) before he is eligible to file an application based upon criminal rehabilitation.

Temporary Resident Permit (TRP)

A Temporary Resident Permit (TRP is required to enter Canada until such time as criminal inadmissibility is removed. A TRP) allows an individual to overcome their inadmissibility for a specified purpose and time frame. The applicant is required to establish that there is a substantial reason they must enter Canada. A TRP can only be used for entry to Canada for a temporary purpose which includes foreign worker, student or visitor but not for permanent residency.

Criminal rehabilitation is a permanent solution to criminal inadmissibility, while a TRP is a only temporary.

The Canadian government encourages individuals to apply well in advance if they know they must enter Canada and are inadmissible.

Links to this Blog:

Us Customs and Border Patrol Website

Canada Citizenship and Immigaration Website

Application to Return - Checklist

Application for Criminal Rehabilitation

Temporary Residency Permit Guide

Since September 30, 2003, the legal limit for operating while intoxicated in the State of Michigan has been .08 per cent or greater. Prior to that time, the legal limit was .10 per cent or greater.

According to a report on WXYZ, the legal limit of .08 percent reverts to .10 percent in October 2013 unless lawmakers in Lansing rule otherwise. Mother's Against Drunk Driving (MADD) is lobbying to keep Michigan's blood alcohol content law at .08 percent for individuals who operate a motor vehicle. The report headline is, "MADD calls on lawyers to keep Michigan's BAC law at .08 percent to prevent drunk driving". According to Republican Rep. Andrea LaFontaine of Columbus Township, Michigan must maintain its .08 percent law to avoid violating federal drunken driving standards and continue receiving federal funding. The .08 limit was adopted in every state as part of an initiative during the Clinton administration by the National Highway Traffic Safety Administration.

It is my opinion that Michigan will retain the BAC legal limit of .08 percent.

A person who is not physically impaired or drunk can be convicted of OWI or Super Drunk!

Under Michigan law, a person is considered to be Operating While Intoxicated (OWI) or drunk driving, if he or she has a BAC of .08 per cent or greater, regardless of actual intoxication. If the BAC is .17 percent or greater, the charge is upped pursuant to Michigan's High BAC law, also known as Super Drunk Driving. Therefore, a person can be charged and convicted of drunk driving, or Super Drunk Driving, even though the person was not impaired or drunk!

How is blood alcohol content determined?

The blood alcohol content is determined by one or more tests. The most popular test is the breath test. A common instrument to obtain a breath sample is the Datamaster. The Datamaster operator must follow complex instructions or there may be grounds to suppress the test result.

What are the consequeneces for refusal of a breath test or chemical test to determine BAC?

There are consequences when a person refuses a test to obtain his blood alcohol content pursuant to Michigan's Implied Consent Law. A first time refusal of a chemical test will result in 6 points and license suspension for 1 year. In addition, a search warrant for a blood sample may be obtained by the police when a person refuses the chemical test offered by the arresting agency.

Are BAC charts accurate?

From a legal standpoint, no amount of alcohol should be consumed prior to the operation of a motor vehicle. However, there are many drink/weight index charts on-line that give an estimated BAC. In addition, a portable breath test can be obtained from many sources. Again, any consumption of alcohol can be a risky proposition and is not recommended prior to the operation of a motor vehicle.

How much does a drunk driving case cost?

Here is an estimated range of fees and costs upon conviction for a first offense drunk driving:

-Attorney Fees: $2,500.00 to $25,000.00 (depending upon motions, trials, deviation requests)
-Fines/Costs: $800.00 to $2,000.00
-Driver Responsibility Fees: $1,000.00 to $2,000.00
-Substance Abuse Assessment: $150.00
-Probation Oversight Expenses: Up to $1,200.00 ($50.00 per month for max of 2 years)
-Insurance: (See Link) $3,000.00 to $6,000.00 per year for 5 years
-Alcohol Counseling: $1,000.00
-Other Possible Costs: Vehicle immobilization, costs of prosecution, municipal/police response costs, vehicle forfeiture

It is imperative that a person charged with drunk driving retain a lawyer as soon as possible. An experienced lawyer will often know when a drunk driving conviction can be avoided or what action needs to be taken to get the best results and avoid many of the harsh consequences associated with a drunk driving conviction.

The ABDO LAW FIRM has been actively representing clients charged with drunk driving in every Macomb County court since 1980.

Our experience tells us that the most prevalent misdemeanor crimes which are prosecuted in the Macomb County District Courts by crime type are as follows:

Possession of Marijuana
Domestic Violence
Retail Fraud
Driving While License Suspended
Operating While Intoxicated
Disorderly Conduct

View image
A recent docket of cases in a Macomb County District Court

Fortunately, these common misdemeanors are manageable from the point of view of our criminal defense lawyers. Again, our experience is based upon handling 1000's of misdemeanor cases in all of the Macomb County District Courts.

When we refer to Macomb County District Courts, we are referring to:

37th District Court: Warren
38th District Court: Eastpointe
39th District Court: Roseville, Fraser
40th District Court: St. Clair Shores
41-A District Court: Sterling Heights
41-A District Court: Shelby Township, Macomb Township, City of Utica
42-1 District Court: Romeo
42-2 District Court: New Baltimore, Chesterfield Township

Specific Provisions of Michigan Laws to Obtain Dismissals of Domestic Violence and Possession of Marijuana and Non-Public Record

In Michigan, there are distinct provisions of law designated for the crimes of Possession of Marijuana and and Domestic Violence to obtain a dismissal and suppression of the public record without going to trial. Our blog pages and web site contain several references to these provisions of law which may be linked as follows:

Domestic Violence: Michigan Compiled Laws 769.4a
Possession of Marijuana: Michigan Compiled Laws 333.7411

Delayed Sentencing and Dismissal of Retail Fraud and Disorderly Conduct Cases (also can be used for other misdemeanors and felonies)

There is also a delayed sentence law which is found at MCL 771.1. This law is a general provision which can be used for any criminal offense. Basically, it allows the Judge to delay the sentence and fashion a result or disposition that the offender can earn after a period of probation. Our criminal defense lawyers have utilized this provision of law extensively for numerous misdemeanor offenses including the commonly charged offenses of Retail Fraud and Disorderly Conduct. There are certain formalities to gain the benefit of a dismissal pursuant to MCL 771.1. Our criminal defense attorneys negotiate a plea bargain for application of MCL 771.1 with the prosecutor for a delayed sentence at a pretrial conference with the component of a dismissal after a period of probation. The Judge has the final say regarding acceptance of the usage of MCL 771.1 and whether dismissal will be provided at a future delayed sentencing date. For information, click here for a link to the blog page which pertains to Retail Fraud charges.

Operating While Intoxicated and Driving While License Suspended

The use or operation of a motorized vehicle is an essential element of the misdemeanor crimes of Driving While License Suspended and Operating While Intoxicated. Possession of marijuana does not require the use of an automobile for the crime to occur. However, possession of marijuana cases often are the end result of a traffic stop after the police officer smells marijuana or obtains consent to search the vehicle or the occupant. We don't always agree with the police methods utilized to obtain consent to search which may involve subtle threats to get a search warrant or to call in the drug sniffing dogs.

Driving While License Suspended and Operating While Intoxicated do not fit neatly into a special provision of law which allows for outright dismissals after a period of probation and compliance. In my opinion, you can thank the insurance industry for legislation that does not allow an offender to obtain expungement of a traffic offense or traffic related crime such as Driving While License Suspended or Operating While Intoxicated. Nonetheless, we are often able to obtain reductions of both Driving While License Suspended and Operating While Intoxicated to minimize points, fines, driver responsibility fees, license sanctions and other sentencing consequences.

This year, we have published several blogs dedicated to "frequently asked (criminal law) questions". Whenever possible, we endeavor to avoid legalese by providing articles in layman's terms. The focus of this blog is pretrial conferences in Macomb County District Courts.

What is a pretrial conference?

A pretrial conference is a meeting that is attended by the attorneys for the parties in a criminal or civil case. The major purposes of a pretrial conference are to facilitate resolution of a case, management of a case for trial or management of a case regarding pertinent issues (as listed below). A pretrial conference is scheduled after either a criminal or civil case is filed with the court, a case number and a Judge are assigned. In Macomb County, criminal pretrial conferences are held soon after the arraignment. For misdemeanors, which occur in Macomb County, the pretrial conference will always be held at the district court (click here for complete listing of links to Macomb County District Courts). Felony pretrial conferences can occur on the date scheduled for a preliminary examination and again after the case is bound over to the circuit court. A person charged with a crime (the defendant) is required to be present on the date scheduled for pretrial conference. However, he or she is usually not allowed in the conference room with the attorneys. On the other hand, police officers and victim's rights advocates with court business are allowed in the conference room. Likewise, an alleged victim may be present at the pretrial conference as the prosecutor must obtain the victim's consent for a plea bargain in most criminal cases.

The direction of a criminal case is often determined after a pretrial conference. Pretrial conferences are a vital tool, which a skilled criminal defense lawyer will utilize for several reasons:

• Promote dismissal of the charge(s) under certain circumstances
• Negotiate a favorable plea bargain
• Address bond, bond conditions and/or release from jail
• Adjourn the pretrial conference to seek a deviation when strict policy obstructs a plea bargain
• Request modification of no-contact order (domestic violence cases)
• Negotiate restitution when financial losses are claimed
• Meet with the Judge when judicial support is needed to discuss various matters, such as sentence bargains, creative plea bargains or to simplify issues of the case when set for trial
• Size up the prosecution's case, witnesses and evidence
• Request copies of discovery (police reports, videos, chemical test results)
• Schedule one or more motion dates to attack the evidence, or to weaken the case
• Set future pretrial conference date(s) when delay can tend to improve the defense position
• Schedule the case for a bench or jury trial

Factoid: A person who is accused of a crime is not considered a "defendant" until that person is formally charged with a crime. Our criminal defense lawyers never refer to our clients as "defendants" when speaking to the court or prosecutor because of negative connotations. We prefer to refer to our clients by their given name or "the accused".

What is the attorney's role at a pretrial conference?

The best way for me to summarize an attorney's role at a pretrial conference is by mentioning a few passages from the Michigan Rules of Professional Conduct.

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

What is the defendant's role at a pretrial conference?

Macomb County (as well as Oakland, Wayne and St.Clair), require the attendance of the defendant at the pretrial conference. If the defendant "fails to appear", an arrest warrant may be issued. Prior to the pretrial conference, our criminal defense attorneys discuss goals and/or strategies with our clients. Even though the defendant is not present in the conference room, he or she is well informed of our intentions. We advise our clients to be punctual, dress appropriately and to refrain from discussing their case with anyone at the courthouse. We assume that our client's conduct is "being monitored". Therefore, we discourage any interaction with the victim or any conduct which draws unfavorable attention. Any progress towards working out a deal can be blown if a client offends certain key decision makers at the pretrial conference or at any other time while a criminal case is pending!

Is there an appearance in the courtroom after the pretrial conference?

After the pretrial conference, the defendant and his or her attorney will appear in open court and inform the Judge of the results. The Judge has the final say regarding the outcome of a pretrial conference. For example, certain plea bargains may be against the Judge's own policy and may require some persuasion and legal authority. In addition, the Judge may show frustration when the parties are attempting to adjourn (delay) cases. Since adjournments tend to clog court dockets, the Judge will require that "good cause" be shown.

Our experience is that a pretrial conference is an invaluable opportunity to advocate on behalf of our clients. Advocacy includes elements of assertiveness and diplomacy. We often can achieve a disposition after the pretrial conference. This may result in a plea bargain, which may have the effect of dismissing the criminal charges in exchange for completion of probation. It is our job to protect our client's rights and seek the best possible outcome, which may mean saving a client from being exposed to egregious facts and the expenses of an unnecessary trial. The defendant remains the ultimate decision-maker when presented with options after the conclusion of a pretrial conference.

Some other important things to know about pretrial conferences:

-Denial of a pretrial conference may constitute a denial of "due process" rights. US vs. Ataya, 864 F2d 1324 (1988)
-No admissions made by the defendant's lawyer in the setting of a pretrial conference are admissible against the defendant during trial.
-Pretrial Conferences for federal criminal cases are governed by Federal Rule of Criminal Procedure 17.1

The addresses and phone numbers for all Macomb County district courts can be found at the following links:

Warren
37th District Court

Eastpointe
38th District Court

Roseville and Fraser
39th District Court

St. Clair Shores
40th District Court

Sterling Heights
41-A District Court

Shelby, Utica and Macomb Township
41-A District Court

Clinton Township, Mt. Clemens, Harrison Township
41-B District Court

Romeo, Washington Township, Armada, Bruce Township, Ray Township, Richmond, Memphis
42-1 District Court

New Baltimore, Chesterfield Township, Lenox Township, New Haven
42-2 District Court

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

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.

This is one of many blogs that our law firm has posted about the Courts where our criminal defense attorneys frequently practice in Macomb County. This is an informational public service blog about the 41-A District Court.

The 41-A District Court in Sterling Heights has jurisdiction from 14 Mile Road to M-59 and from Dequindre to Hayes. This geographical area of approximately 36 square miles contains several major Macomb County thoroughfares such as Hayes, Schoenherr, Van Dyke, Mound and Dequindre. Within Sterling Heights, you will find major shopping centers, the Lakeside Mall, major automotive factories and established residential areas. According to the 2010 US census, the city of Sterling Heights boasts a population of 129,699 and is the second largest suburb in the Metro Detroit area. For these reasons, there are three (3) judges that are needed to administer justice for the City of Sterling Heights. (GOOGLE MAP, CITY OF STERLING HEIGHTS)

The 41-A District Court has jurisdiction to handle non-criminal traffic tickets (civil infractions), criminal matters such as misdemeanors, drunk driving (OWI) and criminal traffic violations. Here is a partial list of offenses which fall under these offense classifications:

Civil Infractions: Speeding, Fail to Obey Traffic Device, Improper Turn, Careless Driving

Criminal Traffic: Drive While Suspended (DWLS), Reckless Driving, Leave Scene of Accident, Fail to Merge for Emergency Response Vehicle

Drunk Driving: Zero Tolerance, Operating While Intoxicated (DUI, OWI), Super Drunk (OWI With a High BAC over .17%)

Misdemeanors: Retail Fraud, Domestic Violence, Disorderly Conduct, MIP, Possession of Marijuana, Possession of Paraphernalia, Malicious Destruction of Property (MDOP), Larceny under $200.00

Criminal Felonies: The district court handles the initial stages of a felony which include issuance of the complaint and warrant, arraignment, bond hearings and preliminary examination. Some arraignments occur after the accused receives a letter and appears voluntarily. The court also utilizes video arraignments for persons that are in custody.

Criminal Warrant Letters: Do not panic if you receive a letter from the Sterling Heights Police directing you to surrender yourself because a criminal warrant has been issued. This would be the time to hire a lawyer if you have not already done so. Our firm has positive experience with scheduling these matters or getting the job done immediately or before a holiday weekend (we don't like to have warrants hanging over our heads over a long weekend). Ordinarily, we can get the warrant, booking, arraignment and bond addressed without any entanglements.

Legal Objectives: Civil Infractions (Traffic Tickets)
As we have mentioned in our other blogs; if you are found guilty of a civil infraction, the offense will appear on your driving record and you will receive point. The Michigan point system is used to determine high risk drivers which can result in license suspension after a person accumulates 12 or more points. In addition, points are used by insurance companies to rate drivers and raise insurance premiums. Do you think insurance companies find it in their best interest to know when a customer has a new ticket? When handling civil infractions, we attempt to reduce or avoid both points and any offense appearing on a client's record.

Legal Objectives: Criminal Cases (Misdemeanors)
If you are found guilty of a criminal offense, it will stay on your permanent criminal record. Our goal is to avoid convictions or to obtain dismissals under special provisions of Michigan laws. While nobody can insure or guarantee that a criminal record will completely disappear after the case is concluded, we will aggressively seek the best case scenario by employing delayed sentence dispositions which result in dismissals for offenses like retail fraud, HYTA for youthful offenders (age 17 but under age 21) and statutory first offender deals such as MCL 333.7411 for drug crimes and MCL 769.4a for domestic violence. Since our firm practices extensively in the 41-A District Court (Sterling Heights and the location in Shelby Township), I can say that the Judges are very receptive to outcomes which are consistent with our objectives based upon several years of experience in this jurisdiction.

The Court also has limited jurisdiction over the initial stages of felony cases which include: authorization of criminal charges, issuance of warrant, arraignment (bond) and preliminary examination. However, felony cases are ultimately resolved in the Circuit Court unless reduced to a misdemeanor in the District Court.

The 41-A District Court is located at 40111 Dodge Park, Sterling Heights, Michigan 48313, Phone: 586-446-2500. The Presiding Judges for the 41-A District Court are Judge Michael S. Maceroni, Judge Stephen S. Sierawski and Judge Kimberley A. Wiegand.

Many of our blogs explore criminal and drunk driving issues within the realm of our law firm's expertise. Others are about the Courts where we frequently practice law. This blog is about the 37th District Court where we regularly provide legal services to our clients who are charged with traffic offenses, criminal (felony or misdemeanor) and OWI cases arising out of Warren and Centerline.

The 37th District Court has two locations which are located in the cities of Centerline and Warren. (MAP OF WARREN) The jurisdictional boundaries of these Courts covers 36 square (from 8 Mile Road to 14 Mile Road and from Hayes to Dequindre). South of 8 Mile Road is the City of Detroit and West of Dequindre is the County of Oakland. Within the boundaries of the 37th District Court are major Macomb County roads, the I-696 expressway, industrial centers, General Motors Tech Center, Automobile Dealers, over 100 restaurants and retail establishments.

The Warren Police Department (WPD) is located directly behind the 37th District Court. The WPD is one of the most active law enforcement agencies in Macomb County with a major detective bureau, air force (helicopter) motorcycle and traffic patrol squad. The detective bureau has a drug enforcement team as well as other units which engage in various undercover operations including cracking down on prostitution. The Michigan State Police also have a presence in Warren as the law enforcement entity responsible for patrolling I-696 expressway.

Our firm has represented clients charged with just about every imaginable misdemeanor and/or felony crime in the 37th District Court including drunk driving (OWI), drug crimes, disorderly conduct, prostitution, offer to engage or solicit sex from another, domestic assault, assault crimes, retail fraud, larceny, fraud, breaking and entering, child abuse, criminal sexual conduct, indecent exposure, malicious destruction of property, traffic violations, DWLS and probation violations.

As experienced criminal defense attorneys in Macomb County, I can say that the 37th District Court is a just and fair place to practice law. What I mean is that Judges are willing to listen to arguments and fairly dispose of criminal, drunk driving and traffic cases. I have found that the Judges are willing to give a criminal defense attorney some leeway when a case goes to trial or preliminary examination. In addition, most criminal cases handled by our firm are resolved without trial (90% or more are resolved by aggressive plea negotiations).

Criminal Cases in the 37th District Court

We set various goals when a client is charged with a criminal or drunk driving offense. Avoidance of a criminal conviction and jail are on the top of our list of goals. Some of our success stories include reducing a felony to a misdemeanor or having a case taken under advisement with a dismissal after a period of probation and compliance with the Court's conditions. We have utilized every special provision of law in the 37th District Court to obtain dismissals of retail fraud, domestic violence, possession of drugs/marijuana, MIP and many other criminal offenses. The Court will also consider petitions to have youthful offenders (age 17 but under age 21) placed on a special status where the public record will be sealed and the offense dismissed for eligible offenders.

Drunk Driving Cases in the 37th District Court

I have found the Judges in the 37th District Court to take some mercy on first offenders whether they are charged with a criminal offense or drunk driving (OWI). Drunk driving cases rarely get dismissed. However, by aggressively defending our clients, an OWI charge can often be reduced to a lesser offense which will save a client money, points and driver responsibility fees. I have represented two (2) clients in July 2012 who had BAC (Blood Alcohol Content) results of .17% or greater. In both cases, I was able to have the charges reduced to impaired driving. (A chemical test result of .17% or greater is known as a "Super Drunk" case and the policy is usually against any reduction in the charge).

Traffic Violations in the 37th District Court

When resolving a traffic matter in the 37th District Court, we are often able to have traffic tickets amended and avoid points. A traffic ticket can be reduced to a Michigan civil infraction known as "impeding traffic" which does not appear on a person's driving record and does not carry any points.

We take every precaution to know the strengths and weaknesses of our cases, set realistic goals and formulate strategies to achieve favorable results. In doing so, we will obtain discovery (police reports, videos, test results), witness statements and make recommendations to our clients for counseling whenever this is an appropriate course of action.

37th District Court Locations:

Warren: 8300 Common Road, Warren, MI 48093 Phone: 586-574-4910

Centerline: 7070 East 10 Mile Road, Centerline, MI 48015, Phone: 586-757-8333

37th District Court Presiding Judges:

John Chmura, Matthew Sabaugh, Jennifer Faunce, Dawn Gruenburg

Soon, Judge Dawn Gruenburg will be leaving the 37th District Court for a Federal Judicial Appointment. She will be dearly missed. Her replacement will be appointed by Governor Rick Snyder. Our firm has sent letters to Governor Snyder in favor of qualified candidates.

The Nautical Mile is located on Jefferson between 9 Mile Road and 10 Mile Road in the City of St. Clair Shores. The Nautical Mile is a Michigan landmark which consists of numerous restaurants, marinas and boat dealers along a one mile stretch of land along the Lake St. Clair shoreline. It is a major Metro Detroit area attraction and is well known for nightlife, dining, water sports, boating or just cruising on Jefferson Avenue.

In 2010, Michigan claimed third place among the 50 states with total boat registrations boasting 812,066 boats and watercraft. Florida and Minnesota rank above Michigan while California trails Michigan in the total number of registrations. The marinas located in St. Clair Shores, along with other Macomb County Marinas located in Mt. Clemens, Harrison Township and New Baltimore, claim a major share of these registrations. The major marinas consist of Miller Marina, Jefferson Beach Marina and Emerald City Harbor.

The locally popular restaurants along the Nautical Mile (Brownies, Pat O'Brien's, The Beach Grill, Waves) offer excellent culinary options and popular night spots. This combined with the marina and boating activity are a recipe for a summer long party atmosphere.

Alcohol is a close cousin of the boating scene which can lead to numerous criminal offenses. Our firm has represented individuals charged with drunk driving (OWI), boating under the influence (BUI), assault crimes, disorderly conduct, resisting arrest, public intoxication, MIP and domestic violence for various behavior on the waterfront. Whether on sea or shore, many of the confrontations with the police on the Nautical Mile are associated with alcohol consumption and/or drug use which can lead to misdemeanor or felony criminal violations.

The 40th District Court, located in St. Clair Shores, sees a fair share of cases associated with criminal activity along the Nautical Mile. I can say that the Judges of the 40th District Court are knowledgeable, proactive and reasonable when it comes to alcohol related crimes in their jurisdiction. Like other Judges in Macomb and Oakland County, the 40th District Court bench will give most first offenders a chance to dig out. The Judges in this Court are receptive to statutes which allow for deferrals and dismissals upon compliance. In this regard, our firm has negotiated and achieved special sentencing dispositions resulting in dismissals of drug crimes, domestic violence, disorderly conduct, MIP and other criminal offenses involving adults or youthful offenders pursuant to the Youthful Trainee Act (HYTA). Drunk driving cases are not so easily resolved but are often reduced to a lower offense which does not result in loss of license or jail time if handled properly. Clients facing a repeat criminal offense, violent crime, narcotic crime or property destruction will need a serious defense strategy.

A person who commits an alcohol related crime can expect probation along with random alcohol testing to insure compliance. The 40th District Court has its own probation department and I can say that they will set up a probation violation hearing upon notice of non-compliance or an alcohol/drug test failure. The 40th District Court is located on the corner of 11 Mile Road and Jefferson: 27701 Jefferson, St. Clair Shores, Michigan 48081; Honorable Mark A. Fratarcangeli and Honorable Joseph Craigen Oster presiding, Phone: 586-445-5280, criminal extension #3.

This is the high season for high school graduation parties, summertime picnics and 4th of July gatherings. Now through Labor Day, teens will freely drink alcoholic beverages at the homes of their friends with adults/parents consenting to the illegal conduct. Otherwise responsible adults with no criminal record will break the law and allow under-age children to consume alcohol at their homes.

Michigan Social Host Liability (Civil Liability) for Furnishing Alcohol to a Minor

In Michigan, the adults who allow persons under age 21 to consume alcohol face civil liability if the minor's consumption of alcohol causes injury or death to another. The injured third party or the minor may file a lawsuit and recover under a social host theory! Think again if you believe that your adult friends who let their minor children drink at your home will support you if one their children is injured after consuming alcohol at your residence. The Social Host Liability law is friendly to personal injury lawyers as it imposes almost strict liability upon the adults that provide consent or lack of supervision leading to the consumption of alcohol by an under-aged person who causes the death or injury to another.

Michigan Criminal Offenses for Furnishing Alcohol to a Minor

Pursuant to MCL 436.1701, a person or retail establishment that sells or furnishes alcohol to a minor faces misdemeanor criminal charges. If the minor's alcohol consumption causes a person's death, the person who furnished the alcohol can be charged with a felony. An adult may also be prosecuted under the statute known as Contributing to the Delinquency of a Minor.

-A person who violates this subsection is guilty of a misdemeanor punishable by a fine of not more than $1,000.00 and imprisonment for not more than 60 days for a first offense, a fine of not more than $2,500.00 and imprisonment for not more than 90 days for a second or subsequent offense, and may be ordered to perform community service. For a second or subsequent offense, the secretary of state shall suspend the operator's or chauffeur's license of an individual who is not a retail licensee or retail licensee's clerk, agent, or employee and who is convicted of violating this subsection.

-A person is guilty of a felony, punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00, or both, if the subsequent consumption of the alcoholic liquor by the minor is a direct and substantial cause of that person's death or an accidental injury that causes that person's death.

The police will also charge a minor who is found in possession of alcohol or who has consumed alcohol (except when the minor can prove he has legally consumed alcohol in a place like Canada). This charge is commonly known as MIP which is given coverage on the Abdo Law Firm website.

Our blogs usually include an image at the beginning of the entry. I thought long and hard about an appropriate image for this blog. My ideas included cheerful graduates, backyard celebrations, car crash photos, teen alcohol consumption, images of someone in a wheelchair, a funeral, etc... In the end, I decided to use the cute July 4th plant image. I want this to symbolize all of the other images that I considered and my sincere hope that everyone has a safe graduation and summer season.

St. Clair County is located in the south eastern part of the thumb area of Michigan. It is the gateway county to the northern thumb and the Great lakes. It is known as the Blue Water Area. St. Clair County borders Macomb, Lapeer and Sanilac Counties and is just a short distance (across the Port Huron River via the Blue Water Bridge) from Sarnia, Ontario, Canada. The Blue Water Bridge is a major international crossing from Canada into the United States. Interstate expressway I-94 runs north and south through St. Clair County, I -69 runs east and west and ends in the City of Port Huron. M-29 is the highway that is located on the eastern shoreline of St. Clair County which takes you in and around the St. Clair River and Anchor Bay. Map of St. Clair County Link.

The eastern side of St. Clair County consists of shoreline on the St. Clair River, Lake Huron, Anchor Bay and Lake St. Clair. The major cities which border these bodies of water are Port Huron (the county seat), St. Clair, Marine City and Algonac. One can enjoy views on the river (freighters, Canada) in any of the cities along these shoreline cities.

Click this link for a live web-cam of the Port Huron River and the Blue Water Bridge.

Recreational attractions in this area include boating, hunting and fishing. The City of St. Clair would be my top pick for dining (Charly's River Crab, St. Clair Inn) or enjoying the charm of a small town with a large park area dedicated along the river. In 2012, more than 50,000 visitors are expected to attend the Blue Water Fest which occurs just prior to the Port Huron to Mackinac Race.

St. Clair County is well guarded and policed because of its international border with Canada and heavy recreational traffic. The courts in St. Clair County see a fair amount of cases associated with recreation violations, DNR violations, border crossing issues (on both the US and Canada side) and drunk driving cases. A drive along the winding highway of M-29 which meanders along the St. Clair River is not a place to be if you have had any alcohol or drugs. In some places, the road is only a matter of feet from the water. Unfortunately, a fair share of accidents and OWI cases occur on this road.

A traffic violation, drunk driving or criminal case (such as domestic violence, disorderly conduct, boating under the influence, drug crimes) in St. Clair County will wind up in the 72nd District Court in either Port Huron or Marine City:

72nd District Court (Port Huron)
201 McMorran Blvd.
Room 2900
Port Huron MI 48060

72nd District Court (Marine City)
2088 South Parker (M-29)
Marine City, MI 48039

The courts and law enforcement officers in St. Clair County tend to be protective of their communities. They have the responsibility of keeping order in an area which has an international border and hosts recreational activities which often involve alcohol. (Jobbie Nooner). Our experience in these courts has been positive. I find the Judges to be reasonable when it comes to first time offenders of criminal acts such as drunk driving, disorderly conduct or simple drug possession charges. Often, such an offender is looking at probation. If the offense involves a first time drug charge or the offender is age 17 but under age 21, a dismissal is possible special Michigan statutes (HYTA and MCL 333.7411).

The recent Court of Appeals case, People v. Koon (which can be read in its entirety here), illustrates how Michigan deals with drugged driving. Oftentimes clients are under the misguided impression that a prescription or a medical marijuana card offers them immunity from prosecution for operating a vehicle while intoxicated. However, Michigan law has two provisions to deal with this. For Schedule 1 narcotics (cocaine, heroin, ecstasy, for example) where there is 'any amount' of the illicit substance the driver can be convicted. Alternatively, impairment must be proven where a client is charged with driving under the influence of a prescribed medication.

The Koon case deals with 3 issues; 1) the 'any amount' provision of MCL 257.625(8); 2) Michigan's Medical Marijuana Act; and 3) marijuana that was ingested hours before the defendant operated the automobile. In this instance, the defendant had a medical marijuana card and had used marijuana five to six hours before driving his automobile. Nonetheless, marijuana's active ingredient THC, which can remain in one's system for weeks after it's ingested, showed up in Mr. Koon's blood. Both the District Court and Circuit Court held that the Medical Marijuana Act was a defense to the zero tolerance law. Unfortunate for Mr. Koon and other card holders, the Court of Appeals did not.

The opinion, which I recommend those visiting this blog take the time read (it's not too complicated), reasons that the Michigan Medical Marijuana Act does not carve out an exception to the 'any presence' law. The MMMA does not reschedule marijuana (it remains Schedule 1) and further specifically states there are no protections for those driving under the influence of marijuana. The issue may be taken up with the State Supreme Court in the future.

What are the takeaways from this case? Most specifically as it pertains to marijuana card holders, they remain at risk driving long after they ingest marijuana. The result does seem harsh given that THC can remain in one's system for weeks after it is initially used. Nonetheless, this seems to shed some light on the way Courts are interpreting that law. Further, this should serve as a reminder that the State does not take lightly to drugged driving. If you are being prosecuted for operating an automobile under the influence of any drug, a marijuana card or a valid prescription does not offer blanket protection. This is likely an issue that will continue to take shape in the Legislature and Court of Appeals over the coming years.

Michigan's "Super Drunk" law has been on the books since October 31, 2010. If you do not already know, this law imposes harsh punishment and license sanctions for anyone convicted of a drinking and driving offense in Michigan with a blood alcohol content (BAC) of .17% or greater. The noteworthy penalties for a "Super Drunk" or "High BAC" conviction are as follows:

• 6 points,
• $1,000.00 per year driver responsibility fee for 2 years,
• 1 year license sanctions as follows: 45 day hard suspension of license (NO DRIVING) followed by 320 days restricted license with ignition interlock upon approval by Secretary of State,
• Up to 180 days in jail,
• Any violation of the ignition interlock will result in additional mandatory license sanctions (another 45 day hard suspension followed by 320 days of restrictions.

Click for link to Michigan Secretary of State website for all drinking and driving penalties.

I never really liked the label "Super Drunk" based upon the simple truth that a person who consumes alcohol and has a BAC of .16% could be branded as a "Super Drunk" by consuming one more sip of a drink. Other factors which influence the BAC are metabolism and the passage of time. Females also tend to have higher BAC levels based upon same variables as men (body weight and number of drinks consumed).

Super Drunk or High BAC Clients Face Policy Against Plea Bargaining

Most counties now have a policy against reduction, or plea bargaining, of High BAC cases to lower drinking and driving crimes. However, we have handled several Super Drunk, or High BAC cases as I prefer to call them, since its passage in 2010. We have had success in avoiding a High BAC convictions in many cases where the factors are in our favor. Our consultations with clients charged with a drinking and driving offense includes: an analysis of the drinking and driving incident and detailed background of our client (education, employment, children, substance abuse history).

In my opinion, the ideal candidate for consideration of a plea bargain to a lesser offense (such as Operating While Intoxicated or Impaired Driving):

• Does not have a criminal record, especially involving drinking and driving,
• Was not involved in an accident, especially an accident involving injuries,
• Is willing to attend counseling before the court orders the individual to do so,
• Was cooperative with the arresting law enforcement agency.

Typical High BAC cases cannot be reduced without a policy deviation approved by the prosecuting attorney. A deviation request is made by exposing weaknesses in the case and by providing the prosecuting attorney with positive information regarding our client. When a deviation request is made, the case may take several court appearances before a response is obtained as to whether the deviation is approved or denied. If a deviation request is denied, the case can be set for trial or motion hearings to attack the traffic stop or other aspects of the case such as technical aspects of the blood alcohol testing equipment.

Selfridge Air National Guard Base (SANG) is one of the oldest military air fields in the United States. It is located in the Township of Harrison, County of Macomb and is situated on prime Lake St. Clair property. Approximately 6000 air and army national guard, as well as civilian employees, are employed and/or housed at the SANG base. There are numerous units assigned to SANG including the 127th Wing (Michigan Air National Guard), customs and border protection and the Coast Guard.

There are many SANG military personnel who are married, live on or off base, and are residents of a state other than Michigan. Our attorneys have represented SANG military personnel for numerous legal matters including drinking offenses (drinking and driving), domestic violence, assault crimes, drug crimes and retail fraud (shoplifting). Anyone in the military who is charged with a criminal offense faces special circumstances which we are prepared to defend. We understand that when a military person (reserved or enlisted) gets into trouble, he or she faces possible rank demotion, loss of security clearance and/or dishonorable discharge from military service upon conviction for a criminal offense.

When a military person becomes a client of our firm, we are aware of their special needs and potential consequences. Certain convictions may be detrimental to a military career. There are other ramifications such as travel restrictions and possible incarceration. When a drinking a driving (DUI or OWI) is charged, the issue may be less compelling and only involve the driver license sanctions for a non-resident. Our job is to identify the needs of our military clients and address these particular needs and concerns. For example, a recent client who was charged with domestic violence needed permission to travel out of the state and the country. The case was resolved favorably whereby the case will be deferred and dismissed after a period of probation. The Judge also granted permission for our client to travel out of state and out of the county.

Upon being retained, we ask our military clients to obtain documentation and references which may include:

• Civilian and Military Achievements, Medals, Deployments
• Letters of Recommendation
• Counseling Report
• Deployment Orders

Our goal is always to avoid a conviction or seek a result that will not jeopardize our client's future with the military. Our results include cases which are dismissed, reduced or dismissed after a period of advisement. Unfortunately, drinking and driving cases are rarely dismissed outright. However, we are usually able to have the charges reduced, avoid jail and obtain permission to travel upon transfer or deployment.

Our firm approaches criminal cases involving military personnel quietly, discreetly and with diplomacy. Fortunately, I have found the prosecutor's, law enforcement and the courts in Macomb County to be sensitive to those that are serving their country.

What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person's system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person's metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test's sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test "experimental". The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing's scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.