Michigan Criminal Lawyer Blog

This is the most frequent question that lawyers receive from their clients, "Am I going to jail?"

Most people being charged with a crime for the first time are not familiar with the justice system and do not know what to expect from their case. For the most part, first time misdemeanor offenders who are compliant with their bond conditions are not looking at serving time in jail. The exaggerated fear of jail is often what causes defendant to avoid legal obligations, skip court dates, evade law enforcement, and ironically is what lands them in jail. If you're being charged with a misdemeanor and are scared and anxious, it is most likely more manageable than you think. This article gives an overview of whether or not a defendant should be anticipating jail time in their misdemeanor criminal case. Generalizations made here apply primarily to experience in Macomb County, though our office has found the following to be true throughout its practice in Metro Detroit.

An attorney cannot ethically guarantee a result in a criminal case. The bottom line is that nobody owns the judge. However, the reality, based upon our experience, is that jail is seldom imposed upon individuals convicted of misdemeanors in the District Courts.

There are numerous exceptions which will explained further below.
Unlike their Circuit Court counterparts, District Courts do not have sentencing guidelines. This gives District Court judges very broad discretion in fashioning sentences. This usually means that case strategy is best tailored to the individual policies of the specific judge that will be sentencing our office's defendant. First time offenders, in just about all cases, are probably NOT looking at jail for the following offenses.

- Drunk driving
- Operating under the influence of drugs
- Retrial fraud
- Misdemeanor assault crimes/domestic violence
- Driving while license suspended
- Possession of marijuana/paraphernalia/use of marijuana
- Disorderly conduct
- Minor in possession/ open intoxicants
- Malicious destruction of property
- Traffic misdemeanors
- Misdemeanor theft/ fraud crimes

In just about all of the above circumstances the offender will be looking at a probationary term. Broadly speaking one year of probation should be anticipated. Sometimes the court will depart from that for the better or worse. Most of the Districts in Macomb impose one year probation for first offense misdemeanors. Some of the courts in Oakland County impose longer probation terms. Moreover, most first time offenders (excluding DUIs and traffic offenses) are eligible for some type of diversionary program that will keep their records clean. While jail is not necessarily on the table in most misdemeanor cases, it is our function to minimize the terms and conditions of probation.

The 41-A District Court serves the City of Sterling Heights, Shelby Township, Macomb Township and Utica and has two (2) locations:

Shelby Division (Shelby Township, Macomb Township, Utica)
51660 Van Dyke, Shelby Township, MI 48316
Phone: 586-739-7325

Sterling Heights Division
40111 Dodge Park, Sterling Heights, MI 48313
Phone: 586-446-2500

Presently, both locations share the probation department which is located at the Sterling Heights division. In addition, any offenders placed on reporting probation are required to report at the Sterling Heights location.

The 41-A District Court in Shelby Township has been seeking funds and approval to build a larger facility based upon need. We expect this to occur in the near future given the geographical area and growing population which is serviced by the Shelby Township division of the 41-A District Court. See recent link regarding court relocation information.

Probation Basics

The district courts in Michigan (including the 41-A District) has jurisdiction to sentence offenders for misdemeanor criminal offenses which can carry up to 1 year in jail. In addition, the district courts may impose probation for a maximum period of 2 years. Click here for a blog which we posted which covers the Most Prevalent Misdemeanors in Macomb County District Courts.

Upon sentencing, a person may be sentenced to serve time in jail followed by a term of probation or probation may be ordered immediately with the possibility of jail only upon violating the terms of probation. In addition, probation may include the component of "reporting" to the probation department at a frequency which the Judge will order; usually once per month. Non-reporting probation is also a possibility for offenders that do not require monitoring by the probation department. Non-reporting probation is preferable and can be argued at the time of sentence.

The 41-A District Courts: Probation Information & Guidelines

Probation is a serious matter. Probation is provided as an alternative to jail. A person that cannot comply with the terms and conditions of probation faces probation violation, probation termination and possible incarceration. A violation of probation can also mean losing the opportunity to get a criminal charge dismissed whenever compliance is a requirement to earn a dismissal of an offense (see MCL 333.7411 for drug crimes, MCL 769.4a for domestic violence).

A person placed on probation by the 41-A District Court is required to sign a form called Probation Information & Guidelines (see image above). The form provides the person with probation directives and requirements. In addition, the form lists various conduct which will constitute a violation of probation:

-Failing to report to probation
-Leaving the State of Michigan without permission
-Missing or failing a drug or alcohol test
-Failure to pay fines/costs
-Failing to report police contact, arrests or criminal charges
-Failing to report any change of address or employment status

The form also states that a "ticket" will result in violation of probation. Our experience is that a ticket, such as a non-criminal traffic civil infraction, will not ordinarily result in a violation of probation provided it is disclosed to the probation department or to the court.

Probation Violations

One should think of probation as a contract or agreement with the court. The court gives something (probation) and the offender gets something (avoidance of jail). The court or judge will honor the agreement provided the offender abides by the terms of the contract (terms of probation). If the offender fails to abide, the court may consider the contract null and void (terminate probation) and impose jail.

Probation violations can result in jail time and the assistance of an attorney is essential. Upon being found guilty of violating probation, the Judge can sentence a person to the maximum remaining jail time which has not been served. For example, possession of marijuana can carry up to 1 year in jail. A first offender who is found guilty of possession of marijuana usually will receive 1 year probation with a dismissal at the end of 1 year upon compliance with probation (see MCL 333.7411). However, if the offender violates any term of probation, he or she can get up to 365 days in jail, minus any jail time that has already been served for the offense.

Links to our website and blogs covering the topic of probation and probation violations:

Probation Violations

Excuses the Don't Hold Up In Court

Probation: Modification or Early Termination

Restrictions for Criminals Placed on Probation in Michigan

Dealing with the Probation Department Prior to Sentencing

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

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 Abdo Law Firm, established more than 30 years ago, prides itself on personal service, professionalism, empathy, and most importantly RESULTS. The purpose of this blog is to share some notable success stories that our office has had since Matthew Abdo has joined the Firm. In all of our cases, hundreds a year, we fight to get charges reduced or dismissed and we always push to eliminate or minimize jail time. Though all of our cases are important to us, beneath are some where we feel we achieved exemplary outcomes.

Charge: Home Invasion 3rd Degree / Malicious Destruction of Property
Max. Jail: 5 years
Court: 41-A District, Shelby

In this instance, Cy was able to negotiate a resolution whereby the original charges were dismissed in lieu of a plea to Entering Without Permission. This is a notable result not only because a 5 year felony was reduced to a misdemeanor and the client did not have to serve any jail time, but because he will eligible to have this off his record after successful completion of probation.

Charge: Assault to do Great Bodily Harm Less Than Assault Less Than Murder
Max Jail: 10 years
Court: 37th District, Warren / Macomb County Circuit

Here, Matthew, through extensive negotiation, advocacy, and motion practice, got the original charge reduced to a Disorderly Conduct. Initially, the client was facing up to 10 years in prison. Ultimately, a plea was offered to a 90 day misdemeanor. After a 4 month period of non-reporting probation the matter was dismissed. The client did not serve any time in jail.

Charge: Placing Harmful Objects in Food
Max Jail: 10 years
Court: 41-A District, Shelby / Macomb County Circuit

This charge, where the client was looking at potentially 10 years of incarceration, was reduced to a 1 year misdemeanor. Furthermore, the client did not have to serve any time and is additionally eligible to have the conviction off his record after succession completion of a manageable term of probation.

Charge: Criminal Sexual Conduct 2nd Degree
Max Jail: 15 years
Court: 41-A Shelby (Utica)

The client in this matter was looking at serious jail time on a conviction of 2nd Degree CSC. Through extensive discussions this matter was dropped to a 1 year misdemeanor and concluded in District Court. At sentencing, the client did not receive any jail time. Further, Cy was able to petition the Court in order to allow the client, an out-of-state resident, to leave Michigan.

Charge: Vicious Dog, Animal at Large
Court: 38th District, Eastpointe

In this case the client's job was at stake with a conviction and so Matthew was presented with a must-win scenario. The Firm would not settle for anything less than a dismissal and appeared in court 5 times until a dismissal was ultimately granted.

Charge: Animal Abuse, Abandonment
Court: 72nd District, Port Huron

This was another case where the office felt anything short of a dismissal would not be an appropriate outcome considering the surrounding facts and circumstances. Through pretrial negotiation the charge was dismissed, preserving the client's clean record. No jail, probation, or fines were assessed.

Charge: Assault, Probation Violation
Court: 41-B District Court, Clinton Twp. and 40th District Court, St. Clair Shores

This legal matter is an example of how our office often takes on cases that have implications in multiple jurisdictions. Here, the client was serving a term of probation in St. Clair Shores and was subsequently charged with assault in Clinton Twp. The client was innocent and therefore would not take anything less than a total victory. A guilty verdict in Clinton Twp. would have violated the client's probation in St. Clair Shores and he very likely would have been looking at jail time. Matt fought the case up to the date of trial, and on that date it was dismissed. Subsequently the client's St. Clair Shore's probation violation was excused. No jail, probation, or fines were assessed.

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.

If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case - we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I've done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: 'It Was Secondhand Marijuana Smoke'

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that "[t]his legend is technically true but highly misleading." In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: 'The Cocaine Seeped Through My Skin'

Though a somewhat more isolated excuse, this still comes up time and time again. Karch's Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn't true, there isn't a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: 'I Was Drinking Cough Syrup'

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn't figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor's note.

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

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

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

-Avoid jail time; and

-Minimize the length, terms and conditions of probation.

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

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

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

In Michigan, when an individual is sentenced for a crime, the Court may place the person on probation for a specified term. The maximum term of probation that may be imposed for a misdemeanor is 2 years and 5 years for most felony cases. All persons convicted of a felony are monitored by the probation office assigned by the Circuit Court. In Macomb County, the probation department is located at 32 Market Street, Mt. Clemens, Michigan. Some of the District Courts, including the 40th District in St. Clair Shores, the 38th District in Eastpointe, the 41-A District which covers Sterling Heights and Shelby Township, the 41-B District in Clinton Township, have their own probation departments.

Typically, the terms of probation after sentencing include regular meetings with a probation officer, alcohol testing, drug testing, and counseling. Probation can be disruptive to one's daily routine and compliance with numerous conditions can interfere with home, school and employment.

Our firm receives calls almost daily from clients who are on probation and want to get out of the system. I find myself using a line from the movie Jerry Maguire when someone calls our law firm and wants to get off probation; "HELP ME HELP YOU." The following will explain what I mean.

Our firm will go to bat for the person who has substantially complied with the terms of probation. A probation order can only be modified or amended by the sentencing Judge. This means that a motion and a hearing must be scheduled to request relief from probation conditions. It is up to the client to supply positive information which will be included in a motion and advocated at a hearing. Your probation officer may be your best witness at a hearing to modify probation. A client wishing to get out of the system must impress the probation officer by being punctual, completing all programs and having a good attitude. Don't be the person who is late for probation meetings, fails drug tests and gives the probation officer a hard time and then expect the probation officer to get on board with your plight to have your probation modified. Remember the movie Jerry Maguire, life improved for the aspiring pro football player (Cubba Gooding, Jr.) when his attitude improved.

We usually like our clients to have served at least ½ of the total term of probation before we will file a motion to terminate probation. In other words, if someone gets two (2) years of probation, a motion to terminate probation may be considered after one (1) year of compliance. The Court may entertain outright termination of probation, amending probation from reporting to non-reporting or modification of conditions.

In Michigan, probation cannot exceed 2 years for misdemeanors and 5 years for felonies. Probation is determined at the time of sentencing and may include a component of incarceration. For example, our firm recently represented someone who was convicted of a felony, drunk driving third offense. The offender had 6 total drinking and driving convictions on his record and faced 1-5 years in prison. The Court was persuaded by the defendant's employment and decision to begin a substance abuse treatment program. The defendant was sentenced to 2 years probation with the first 30 days in jail the Macomb County Jail; the minimum period of incarceration allowed by Michigan statute for felony drunk driving.

The least restrictive type of probation is called non-reporting or unsupervised. This means that the Defendant must be on good behavior during a period of probation and will be discharged at the end of probation provided the person does not violate any criminal laws. In addition, the Court may attach some conditions with non-reporting probation such as not leaving the State of Michigan without approval and attending an appropriate program (AA meetings or anger management).

Probation may also be supervised or reporting. The Court has broad power to place limitations and restrictions on otherwise legal behavior for a person who gets probation. For example, someone placed on probation may be prohibited from entering into a strip club or from using a computer. The image which is attached to this page is a copy of the probation conditions which are possible in Macomb County. Failure to abide by any of these provisions can result in termination of probation and incarceration.

Some counties, including Oakland and Ingham, employ a program known as Operation Nighthawk to monitor the behavior of those who are placed on probation. Operation Nighthawk is a program whereby probation officers along with law enforcement officers randomly visit probationers, usually after hours, to verify compliance. In an article which appears in the Ingham County Legal News, 55th District Court Judge says, "Unannounced sweeps by our probation office with local law enforcement officers are the backbone of Operation Nighthawk. NIGHTHAWK encourages probationers to follow their probation orders."

The 42-1 District Court, located in the City of Romeo, has posted a list of possible fines and costs for various crimes. The list also contains a warning as follows: ALL FINES AND COSTS ARE DUE AT THE TIME OF SENTENCING, WE DO NOT GIVE TIME TO PAY. This warning is followed by strong language that failure to pay fines and costs will result in jail time.

The approximate range of fines and costs for a first offense Operating While Intoxicated (OWI) or Impaired Driving (OWVI) in the Romeo District Court is from $1,000.00 to $1,500.00. For a second offense, the range jumps to $1,500.00 to $2,500.00. This does not include other costs such as probation oversight expenses, substance abuse screening, driver responsibility fees, police/municipal response costs, random testing and substance abuse counseling. The driver responsibility fee for OWI is $1,000.00 per year for 2 years and for $500.00 per year for 2 years upon conviction of Impaired Driving.

The fines and costs for drinking and driving offenses in the 42-1 Court in Romeo tend to be on the high side but are consistent with fines and costs imposed in other courts such as the 41-B District Court, Clinton Township, which is also located in Macomb County. Information about other district courts located in Macomb County can be found at the county's website.

The 42-1 District Court has jurisdiction over the following municipalites: Romeo, Washington Township, Ray Township and Armada Township and Memphis.

Your First Contact with the Probation Department

If you are convicted of a a Michigan Criminal offense, your first contact with probation will occur after you are found guilty. In felony cases, the Judge is required to order a presentence report which is prepared by the probation department. In misdemeanor cases, a presentence report is discretionary unless it involves a drinking and driving offense. If you are convicted of a drinking and driving offense in Michigan, substance abuse evaluations are mandatory. When you are referred to the probation department for an investigation, you should remember that the probation officers have a huge caseload and are often unable to hold your hand through the process. Our Clinton Township criminal defense attorneys have found that the best way to deal with the probation officers is to help them help you! I advise my clients to:

1. Be early for any appointment, dress appropriately.
2. Do not draw attention to flashy jewelry or clothing with messages.
3. Be extremely polite and do not display a bad attitude or hostility.
4. Have a folder with organized copies of any positive documents ready.
5. Do not ask the probation officer to make copies. This will show your lack of organization and need to be managed and supervised.
6. Be ready to provide a drug test. If you fail a test, you are just asking for additional conditions such as random testing, counseling.
7. Get into counseling before your interview if you need help and provide the probation officer with proof.

Your Probation Officer Writes Everything Down That You Say

When talking to the probation officer, you should fare better by following the above guidelines. Your Michigan Probation Officer may have 100's of clients. The probation officer has power to make numerous recommendations to the Judge about your sentence conditions. Do not volunteer information to the probation officer because it will go into your permanent file. For example, if you used cocaine 20 years ago and it doesn't show up on your record and is no longer an issue, do not volunteer this information which may result in additional probation conditions. Similarly, do not volunteer details about your criminal case. Your probation officer will already have the police report and you run the risk of incriminating yourself if you talk about the case too much. It is best to ask your attorney what you should say about your criminal case. Most importantly, do not make things worse by lying to the probation officer. The probation officer will have your past records and may be testing you by asking questions where the answers are already known.

Be Proactive To Reduce Conditions And Supervision

If you can show the probation officer that you are someone who does not need to be monitored or supervised by the system, you may save yourself from having burdensome conditions imposed. In this regard, if you need counseling, our lawyers may direct you to begin a program and provide proof of counseling at your probation interview.

After You Are Placed On Probation

In Michigan, you can be placed on probation for up to 5 years for a felony and 2 years for a misdemeanor. After you are placed on probation, you may be required to report to a probation officer once per month or as directed by the Judge. Remember, probation and supervision is imposed upon people that cannot manage themselves. You lose freedom as a result of illegal conduct. The idea is to dig yourself out of the system and regain your liberty. Again, help the probation officer help you. If you are compliant, the probation officer may recommend that your probation be non-reporting or that your probation be terminated early. If you cannot comply with a condition of your probation, you should explain your situation to your probation officer as soon as possible. The probation officer may try to help you with this problem. If the probation officer does not help you, then you will need to file a motion to modify your probation before the same Judge that sentenced you. If you have been a good probationer, your officer may be able to help you when you have a hearing before the Judge. You will want to consult an attorney if you cannot comply with the conditions of your probation because you can be sentenced to jail time for a probation violation.