ABDO-LAW-CY-MATT-JOE-AT-41A

Crime Classifications/Misdemeanor or Felony

In Michigan, crimes are classified as either misdemeanors or felonies. The maximum term of incarceration determines whether a crime is classified as a misdemeanor or felony. A misdemeanor is defined as a crime that carries 1 year or less in jail. A felony is defined as a crime that carries more than 1 year, up to life, in prison. Felony representation link.

There are hundreds of offenses that are classified as misdemeanors in Michigan. In our experience, the following are the most prevalent misdemeanor crimes that you will find on the dockets of Metro Detroit (Wayne, Oakland, Macomb) district courts:

Each of the above offenses constitutes a crime. Upon conviction, the offense will appear on a person’s permanent public criminal history with the Michigan State Police and the FBI. With some exceptions, most misdemeanors are eligible for expungement.

Our research indicates that there are several thousand arrests in Michigan for misdemeanor offenses. Drunk Driving cases account for roughly 10,000 arrests each year in the Counties of Macomb, Oakland and Wayne. Retail fraud and larceny crimes are also extremely common criminal offenses. In 2018, approximately 20,000 property crimes were reported in Macomb County alone. Property crimes include retail fraud, MDOP, other larceny crimes, joyriding and embezzlement.

Certain misdemeanor offenses may be more prevalent in a particular geographical area because of specific police activity. For example the following criminal offenses are targeted by the police and thus more prevalent in these areas:

Macomb County District Courts

We have dedicated this  article to give you the big picture on the topic of misdemeanors in Macomb County. This project is based upon our experience handling more than 10,000 criminal cases in Michigan. Misdemeanor cases are handled in the local district courts for each county. The district court system in Michigan is broken down based upon population. This map illustrates the jurisdictional picture of the district court system in Macomb County where misdemeanor cases are adjudicated:

District-Courts-Macomb-Map

The list below contains links to the district courts located in Macomb County:

Penalties  and Consequences for Misdemeanors

Misdemeanors are extremely serious matters. The presiding district court judge has vast power to sentence an individual following a conviction for a misdemeanor. The list of potential penalties and consequences for a misdemeanor conviction are as follows:

  • Jail: Up to 1 year incarceration.
  • Fine, court costs and cost of prosecution in the judge’s discretion.
  • No limit on restitution for any loss, injury or damage to victim(s) or third parties such as insurance companies.
  • Probation for up to two (2) years.
  • Probation for up to five (5) years for stalking.
  • Substance abuse counseling, attendance of AA meetings.
  • GPS monitoring (in cases such as stalking).
  • Loss of right to obtain a concealed pistol license (CPL) for a period of 3 years or 8 years, depending upon the offense.
  • Suspension or revocation of driver’s license for traffic misdemeanors and OWI.
  • Points added to your driving record for traffic misdemeanors and OWI.
  • No contact order as a bond condition and during the entire period of probation.
  • Alcohol and drug test testing as a bond condition and during the entire period of probation.
  • Travel restrictions as a bond condition and during entire period of probation.
  • Reporting to a probation officer at intervals to be determined by the judge.
  • Deportation for non-US citizens upon conviction of misdemeanors that constitute crimes of moral turpitude.

Getting an experienced criminal defense attorney can be the best decision that you can make if you are charged with a misdemeanor. There may be ways to avoid a conviction altogether, have the offense reduced or amended and avoid many of the penalties and consequences as listed above.

Getting a Misdemeanor Case Under Control

A misdemeanor needs to be taken seriously. Fortunately, there are distinct provisions of law in Michigan designated to obtain a dismissal of a misdemeanor without going to trial. These provisions of law afford an individual a chance to get a criminal charge dropped after completing a period of probation and complying with the terms of probation. The following is a list of provisions used extensively in every Macomb County Court with links for expanded explanations:

  • HYTA: Cases accepted pursuant to HYTA status enable youthful offenders (age 17 but under age 24) to get a criminal offense (felony or misdemeanor) dismissed and sealed.
  • Dismissal of Drug Crimes: First time drug offenses involving use or possession, but not delivery, can be dismissed pursuant to application of MCL 333.7411.
  • Domestic Violence: A domestic violence charge can be dismissed upon use of MCL 769.4a in appropriate circumstances.
  • Deferral of Case or Delaying Sentence: MCL 771.1 is a special provision of law that can be utilized to get a criminal case under control by deferring the matter (for a later dismissal or reduction in the charge) or delaying the sentence (for leniency).

Although the above provisions are widely used and have enormous benefits, they are not without consequences. Once in the system for a criminal offense, a court file and police record are generated. Even if a case is later dismissed under a special provision of law, there can be a record floating around that should have been suppressed or sealed. In addition, there are always certain government and police agencies, along with other sensitive institutions, that are able to see every entry of a person’s record, even for matters that are dismissed under a special provision of law.  An experienced criminal defense lawyer can look for ways to strategically handle a criminal matter to get the most favorable resolution to avoid a trail of negative entries on a person’s record.

Retail Fraud/Shoplifting Can be Dismissed in Macomb County

Retail fraud is the name given for the crime of shoplifting in Michigan and it is always one of the most prevalent crimes that we see in every courtroom in Macomb County. The offense of retail fraud is committed by taking something from a retail establishment with the intent to steal. The crime is accomplished by the intentional concealment of goods, changing a price tag/package or by attempting to defeat the scanning process. Retail fraud is a serious crime and constitutes a crime of moral turpitude that will result in deportation for those that do not have United States citizenship. The penalty for retail fraud depends upon the value of the goods:

  • Retail Fraud First Degree (value of goods $1,000.00 or more): Felony punishable by up to 5 years imprisonment.
  • Retail Fraud Second Degree (value of goods $200.00 up to $1,000.00): Misdemeanor punishable by up to 1 year in jail.
  • Retail Fraud Third Degree (value of goods up to $200.00): Misdemeanor punishable by up to 93 days in jail.

Virtually every major retailer (Kohl’s, Target, Walmart, Meijer, Sam’s Club) utilizes loss prevention employees to deter shoplifting and apprehend shoplifters. Once charged with this crime, an attorney’s services are crucial to find a way to avoid a conviction in the criminal justice system. First offenders almost always qualify for a plea bargain to get the matter deferred and dismissed. The terms of the probation can differ depending the court and whether the judge believes the offender needs to be supervised or non-supervised. Non US Citizens need to hire a lawyer to avoid a “theft” related conviction altogether to avoid deportation.

Avoiding Traffic Misdemeanors

Not all traffic offenses are created equal. Traffic offenses are classified as civil infractions or misdemeanors. Civil infractions, such as speeding, are considered less serious. Misdemeanor traffic offenses often carry greater points (6 in many cases), possible jail and appear on a person’s criminal record.  In Michigan, the following offenses are misdemeanors:

  • Reckless Driving
  • Leaving the Scene of an Accident
  • Driving While License Suspended

We look for ways to reduce the impact of a traffic misdemeanors by scheduling a pretrial conference with the prosecutor to seek meaningful reductions. This often can result in a misdemeanor being reduced to a civil infraction thereby saving a person from having a criminal record. In addition, getting a traffic misdemeanor reduced to a lower offense can also result in meaningful reduction in points and insurance premium savings.

Operating While Intoxicated 

As we have said, Operating while Intoxicated (OWI) is always one of the most prevalent crimes on every district court docket. Like most people, you have probably not heard of the Michigan Drunk Driving Audit. The Michigan Drunk Driving Audit is a website which compiles detailed statistics regarding drunk cases based upon  information obtained from police agencies and courts. In 2018, there were approximately 2,200 individuals tested for drugs or alcohol and most resulting a criminal charge of operating while intoxicated or under the influence of drugs. The statistics are further broken with details as to the number of individuals with a blood alcohol content of (BAC) of .17% or greater. In 2018, approximately 750 individuals in Macomb County that provided a test result were positive for alcohol at .17% or greater, constituting “Super Drunk Driving“.

There are many legal and technical aspects to a drunk driving case. At the very least, you probably have the following questions if you are facing a drunk driving offense:

  • Can the case be dismissed?
  • Can the charge be reduced?
  • Am I going to jail?
  • What will happen to my license?
  • Why did they destroy my license?
  • Was I required to give a blood test or take a breathalyzer test?
  • Can an attorney get the police in-car video and body-cam video? Continue reading ›

COVID-19-Advocates-scaled

Attorney Joseph Campbell wearing personal protective equipment while advocating in 41A District Court of Shelby Township for a client facing life in prison amidst global coronavirus pandemic.

From Washington D.C. to Washington Township, MI, the global coronavirus outbreak has triggered a state of emergency response nationwide. On March 10, Michigan Governor Gretchen Whitmer announced the closure of all K–12 school buildings statewide until April 5. Then, on March 16, Michigan bars, restaurants, entertainment venues, and other businesses were ordered to partially close for two weeks. Thereafter, events and gatherings of more than 50 people were banned from March 17 – April 5. Finally on March 24, Executive Order No. 2020-21, a statewide stay-at-home order was issued until April 13 for all Michiganders, limiting all non-essential travel and discontinuing all non-essential business services and operations. Among other things, Executive Order No. 2020-21, Michigan’s ‘Stay Home, Stay Safe’ order directs all Michiganders to stay home except under very limited circumstances. 

Abdo Law encourages all Michigan residents to comply with the ‘Stay Home, Stay Safe’ order when leaving their residence, as failing to comply with Executive Order No. 2020-21 could result in a $500 fine and/or 90 days in jail for each violation. Pursuant to Section 14, a willful violation of the Order will result in a criminal misdemeanor.  Section 14 cites to MCL 10.33 and MCL 30.405(3), which state, respectively:

EMERGENCY POWERS OF GOVERNOR (EXCERPT)

Act 302 of 1945; 10.33 Violation; misdemeanor.

Sec. 3. The violation of any such orders, rules and regulations made in conformity with this act shall be punishable as a misdemeanor, where such order, rule or regulation states that the violation thereof shall constitute a misdemeanor.

– – – – –

EMERGENCY MANAGEMENT ACT (EXCERPT)

Act 390 of 1976

(3) A person who willfully disobeys or interferes with the implementation of a rule, order, or directive issued by the governor pursuant to this section is guilty of a misdemeanor.

– – – – –

What’s more, Michigan Attorney General Dana Nessel made a recent press release reminding residents that calls regarding failing to comply with the ‘Stay Home, Stay Safe’ order should go to local law enforcement. Michigan State Police and local police departments enforcement of complying with Executive Order No. 2020-21 have varied from asking drivers why they’re out in public to asking for proof of employment through an employee issued I.D. card, while other officers are going as far as following drivers to their stated location and citing criminal misdemeanors. On March 30, Michigan State Police stated via Twitter that they are not conducting random traffic stops and their troopers do not carry thermometers.

Over this past weekend, an unfortunate 1,000+ new confirmed coronavirus cases were reported in Michigan, with coronavirus cases now totaling 4,658 while our death toll has painfully risen to 111. Each of Metro Detroit’s tri-counties now has more than 500 coronavirus cases, with Wayne County at 938 cases, Oakland County at 1,018 cases, and Macomb County at 524 total cases.

Not much is clear at this point for the majority of Michiganders. We’ve been ordered to stay home. We’re even supposed to stay 6 feet away from those we live with. These are challenging times and every day is unprecedented. While we know the strength and grit of residents in Metro Detroit, we encourage community members to comply with our statewide stay-at-home order. COVID-19 does not discriminate and it is clearly deadly. Abdo Law respects and salutes Michigan’s first responders, grocers, and other critical infrastructure workers as they risk everything on a daily basis. Abdo Law asks individuals within Metro Detroit that maintain a healthy lifestyle to extend a helping hand for their neighbors with compromised conditions. Reach out and coordinate with elders in our community to retrieve grocery and other items necessary to sustain or protect their lives. 

Will Michigan families get together this Easter? If not together in person, will Easter dinner be shared with families over Facetime or Zoom together? We are optimistic while extent of impact and timeframe of COVID-19’s shutdown remains speculative for most of society. Undoubtedly, all persons throughout Michigan are impacted by the novel coronavirus. Listed below are helpful links and important exceptions to Executive Order No. 2020-21.

COVID-19, Centers for Disease Prevention and Control 

Michigan Executive Order 2020-21 (COVID-19)

Coronavirus – Critical Infrastructure Workers

Sunday, March 29: Latest developments on coronavirus in Michigan

 

Exceptions to Michigan’s ‘Stay Home, Stay Safe’ Executive Order No. 2020-21

  1. Individuals may leave their home or place of residence, and travel as necessary: 
  • To engage in outdoor activity, including walking, hiking, running, cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual’s household.
  • To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) may leave their home for work without a designation.)
  • To conduct minimum basic operations, as described in section 4(b), after being designated to perform such work by their employers.
  • To perform necessary government activities, as described in section 6.
  • To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).
  • To obtain necessary services or supplies for themselves, their family or household members, and their vehicles. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences.
  • To care for a family member or a family member’s pet in another household.
  • To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
  • To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
  • To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
  • To work or volunteer for businesses or operations (including both and religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
  • Individuals may also travel: 
  1. To return to a home or place of residence from outside this state. 
  2. To leave this state for a home or residence elsewhere.
  3. To travel between two residences in this state. 

Continue reading ›

 

downtown_RO

Royal Oak is one of the most popular nightlife destinations in Metro Detroit. There are few other towns that in just a couple city blocks have so many options for food and entertainment. Every week thousands of patrons fill restaurants such as Ronin, Town Tavern, or Andiamo. Royal Oak is also home to many well-known night spots such as Commune, Blackfinn, Fifth Avenue, and Luna. While there seems to be a push to attract people to the City for an evening out, the Royal Oak police do not tolerate drunken behavior on its streets. Anyone who sits in the back of the 44th District‘s Court Room for a morning will tell you that the docket is full of drinking related cases which include drunk driving and disorderly conduct. The point of this blog post is two-fold; one is to inform how to avoid a disorderly conduct charge and the second is to explain how our office can help if you are being charged in Royal Oak.

Disorderly conduct is NOT a civil infraction, it is a criminal misdemeanor, and it is punishable by jail time as well as a fine and court costs. In addition, to possible jail, fines and costs, the following sanctions may also be imposed or court ordered:

  • Up to 2 years probation.
  • Drug and alcohol testing while on bond or probation.
  • Substance abuse/alcohol counseling.
  • Community service.
  • Oakland County WWAM community service.
  • Restitution for any damages or injuries.
  • Municipal response (police) costs.

A night out with friends should not end up as a disaster. It is our job to get your case under control and get you out of the system with minimal consequences and the ability to earn a dismissal of the charge upon compliance,

What is Considered Disorderly Conduct in Royal Oak?

Legally speaking, the City of Royal Oak defines Disorderly Conduct as follows:

§ 278-35. Disorderly conduct
.

A person commits the offense of disorderly conduct if he or she:
A. Engages in fighting or in violent, tumultuous or threatening behavior;
B. Makes unreasonable noise which tends to cause a public danger, alarm, disorder or nuisance;
C. Uses threatening, abusive or obscene language or makes an obscene gesture, which by their very use inflict injury or tend to incite a breach of the peace;
D. Without lawful authority, disturbs any lawful assembly or meeting of persons;
E. Obstructs vehicular or pedestrian traffic;
F. Possesses or consumes alcoholic liquor in any public park, public place of amusement, or area under the jurisdiction of the City of Royal Oak that is owned and/or administered by the City of Royal Oak;
G. Urinates in a public place, except at public toilets.
H. Engages in an illegal occupation or business;
I. Loiters in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed;
J. Knowingly loiters in or about a place where an illegal occupation or business is being conducted;
K. Is found jostling or roughly crowding people unnecessarily in a public place;
L. Commits the offense of failure as a disorderly person to disperse if he or she participates with two more other persons in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, and intentionally refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in executing or enforcing the law;
M. Permits or suffers any place occupied or controlled by him or her to be a resort of noisy, boisterous, or disorderly persons.
N. A person commits the offense of public intoxication if he or she appears in a public place under the influence of alcohol, a controlled substance, other drugs or combination thereof and he or she is either endangering directly the safety of another person or of property, or is acting in a manner that causes a public disturbance.
O. Commits the offense of window peeping.

Examples of Disorderly Conduct, Public Intoxication Cases, Peeing in Public

Practically speaking, the disorderly conduct state statute and local city ordinances cover a wide range of behavior that many might not realize amounts to criminal activity. There are a several scenarios that can result in being charged with disorderly conduct (a/k/a drunken disorderly or public intoxication). Here is just of sample of cases that we have seen:

  • Getting forcibly removed from a bar, only to find the police outside, who witness the scene and issue a disorderly citation.
  • Creating a disturbance of any kind, or fighting, after consumption of alcohol.
  • Urinating in public.
  • Entering the wrong house in a neighborhood after consuming alcohol (this happens more often than you would think).
  • Laying down on the sidewalk intoxicated or vomiting in a public place.
  • Having sex in public (which can also lead to more serious sex crimes such as indecent exposure or gross indecency).

Other activity that will put you at risk for a disorderly conduct is being loud, harassing/pushing people in places of business, interfering with public property, and most importantly being disrespectful towards law enforcement.

Felony Charges for Extreme Conduct: Resisting/Obstructing the Police, Fleeing

The very nature of disorderly conduct, in our opinion, is that it is a fallback charge when conduct does not rise to the level of a more serious crime. Word to the wise, if being questioned by police ALWAYS be cooperative and polite. Lashing out towards law enforcement can turn a 90 day disorderly conduct misdemeanor charge into a felony such as  resisting and obstructing which can carry 2 years in prison. Likewise, driving off or running from the police is always a bad idea because once apprehended, the offender can be charged with fleeing and eluding, a felony with various penalties.

Hot Spots for Disorderly Conduct: Royal Oak, Ferndale, St. Clair Shores, Utica, Detroit

Mostly, we see disorderly conduct, or alcohol related cases (urinating in public, indecent exposure), arising in areas where there is a concentration of bars and people are assembled on the streets for various reasons. There is no limitation to where a disorderly conduct offense can occur. Nonetheless, the vast majority of cases occur in areas which offer a popular bar/nightclub scene like Royal Oak, Detroit, St. Clair Shores (Nautical Mile), downtown Utica, and downtown Ferndale.  Detroit sports venues and sports bars are also places where the police are watching and charging exuberant fans with disorderly conduct.  While disorderly conduct cases are always one of the most prevalent on every district court docket, I would say that we see more of them occur on the Wednesday before Thanksgiving (one of the biggest ‘bar nights’) and Tigers opening day, than at any other time.

Courts will Consider Deferring Proceedings and a Dismissal!

Most of the people we see charged with this offense are young adults, those applying for school and work. A disorderly conduct is a horrible offense to have on your record at such a crucial period. Without any context for the charge, employers and educators will just see that the accused was too drunk in public. For that reason, fighting or negotiating these charges is crucial.

Unfortunately these cases do not lend themselves neatly to trials. Typically the accused was drunk and it makes for memory/credibility issues. However, our office has found that such cases are normally ripe for negotiation. If you are charged with Disorderly Conduct, do not make the fatal mistake of pleading guilty without first knowing all of your options. Contacting an experienced criminal defense lawyer should be your first priority. Oftentimes, we can arrange a probationary period whereby the charge will be dismissed upon compliance with any conditions ordered by the court at the conclusion of the term. The length of the probationary period and the terms of probation are in the sole discretion of the Judge assigned to the case which may include all or none of the following: alcohol testing, drug testing, counseling, community service, reporting to a probation officer, fines/costs (always imposed) and possible jail time (rarely imposed unless the circumstances are extreme).

Our Firm is experienced in Royal Oak’s 44th District Court. We have found that its Judges are very realistic, fair, and will listen to well-reasoned arguments. Depending on the circumstances our office may recommend counseling if we believe, based on our experience, that it is necessary or will help facilitate a favorable disposition.
Continue reading ›


ABDO-LAW-CY-MATT-JOE-AT-41A

41A District, Shelby Township Division

Jurisdiction over Shelby Township, Macomb Township and Utica

Macomb County, the 586 County: 9 District Courts, Over 2,000 DUI Arrests in 2018 

From our experience, those finding themselves charged with operating a motor vehicle under the influence of drugs or alcohol (DUI/OWI), rarely fit the mold of someone that you would expect to get into trouble with the law. In many situations, our clients have responsible employment, solid relationships and lead healthy lifestyles. On the other extreme, we have represented those that admit to a substance abuse problem, use alcohol as a social lubricant after a recent breakup or divorce and/or are self-medicating to numb psychological disorders, relationship problems or a significant loss. Unfortunately, once in the court system, a person can be unfairly treated and characterized as a substance abuser because of an isolated episode of alcohol consumption and lack of knowledge of Michigan’s strict DUI laws. Whatever situation you are facing, we know that you didn’t intentionally set out to get charged with driving under the influence but consider yourself in the right place to get the straight facts if your case is in Macomb County. 

There are 83 counties in Michigan with Macomb County ranking third in population size behind Wayne County and Oakland County. The cities of Warren and Sterling Heights rank third and fourth in population size among Michigan cities. Macomb County is the “586” county and home to 9 district courts which covers a diverse population and contrasting regions from Eastpointe on the 8 Mile Road border to Romeo, a community dotted with apple orchards, rural charm. Others areas in Macomb County, such as Macomb Township, Shelby Township, Chesterfield Township and Washington Township, have seen explosive residential and commercial growth.

We have dedicated this  article to give you the big picture on the topic of driving under the influence (DUI/OWI) in Macomb County based upon our experience handling 1,000’s of DUI/OWI cases and because DUI/OWI cases are consistently one of the most prevalent criminal charges in the Macomb County district courts. The list below contains links to the district courts located in Macomb County:

Michigan State Police Keep Drunk Driving Statistics 

Although I have not officially counted, there are more laws, ordinances and administrative rules on the books for drunk driving than exist for murder, kidnapping and armed robbery combined! 

Since 1999, the Michigan State Police has kept track of DUI/OWI cases in every Michigan county. This data can be found online Michigan Drunk Driving Audit. In 2018, there were approximately 2,200 arrests for operating under the influence of alcohol or drugs in Macomb County. Here are the numbers of incidents (breath/blood tests) for select police agencies in Macomb County.

  • Macomb County Sheriff: 369
  • Warren: 198
  • St. Clair Shores: 162
  • Clinton Township: 156
  • Shelby Township: 155
  • Sterling Heights: 151
  • Chesterfield Township: 127
  • New Baltimore: 90
  • Roseville: 85
  • Utica: 72
  • Eastpointe: 66
  • Fraser: 50
  • Richmond: 35
  • Centerline: 18
  • Romeo: 11

A word about these numbers: These numbers represent the total of those tested for alcohol or drugs by a breath or blood test. The ultimate charge is dependent on the test result for alcohol (.08 or .17 or greater) or drugs, whether an injury/death occurred, the prior record of the offender and other factors. Surely you are feeling unlucky if you have been charged with DUI/OWI in one of these jurisdictions considering that several thousands of individuals drive under the influence of alcohol or drugs in Macomb County on any given weekend. The Macomb County Sheriff, which provides law enforcement in several major areas (Macomb Township, Harrison Township, Washington Township), sees the greatest number of OWI incidents within Macomb County. Lastly, geographic size alone does not determine OWI activity. For example, the City of Utica, with several bars, Jimmy John’s Field, restaurants and hotels crammed into a compact geographical area of 1.776 square miles, had 72 OWI incidents in 2018, compared with Sterling Heights (151 incidents) that is almost 20 times larger.

What do the abbreviations mean for OWI, OWVI, OUID & OWI High BAC?

You can expect to be hit with confusing legal jargon and abbreviations if you are charged with driving or operating under the influence. Over the years, drunk driving laws have evolved but some of the old abbreviations have survived and are still widely used to refer to a drunk driving offense.

  • OWI=Operating while intoxicated: This offense covers charges when a person has a blood alcohol content of .08% or greater which is abbreviated as OWI. The abbreviations of DUI and OUIL mean the same thing as an OWI but are from a generation of prior drunk driving laws.
  • OWVI=Operating while visibly impaired:  This is the offense which is a lower charge than OWI . OWI is often reduced to OWVI in the court system.
  • OWPD=Operating with the presence of a Schedule 1 controlled substance: As determined by a blood test.
  • OUID=Operating under the influence of drugs: Includes situations where someone is impaired by the use of prescription medications.
  • OWI with High BAC=Operating with a high blood alcohol content: This is also referred to as a “super drunk driving” and is charged when a person has a blood alcohol content of .17% or more. OWI with high BAC carries much higher criminal and driving penalties than OWI or OWVI. Most county prosecutors have a policy and do not reduce OWI with a high BAC without policy deviation granted.

Why did the police destroy my driver’s license?

Can I still drive with a temporary license?

When will I get my picture license back?

dui 257g

The following is a directive to law enforcement officers after placing someone under arrest for a DUI:

MCL 257.625g: On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

Once officially arrested for a drunk driving offense, the police will destroy the plastic driver’s license and issue a Michigan Temporary Driving Permit as seen above.  This permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, ticket or other notification, bond receipt and towing receipt. This Michigan Temporary Driving Permit will enable the person to continue to operate a vehicle without any restrictions. Any license restrictions or suspension will not be triggered by the Secretary of State until there is a finding of guilt for  OWI/Impaired . Upon conviction or finding of guilt, the Secretary of State will issue license action by mail to the last address of the offender. The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

There are mandatory license sanctions for every OWI offense. Upon conviction, these sanctions, or action, is imposed by the Secretary of State and the court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense.  Sobriety court may also save a repeat OWI/DUI offender from a mandatory license revocation.

Michigan Alcohol or Drug Crime License Action
First Offense OWI (.08 or greater)  30 days suspended, 150 days restricted
First Offense OUID (drugs)  30 days suspended, 150 days restricted
Second Offense within 7 Years Indefinite revocation (minimum 1 year)
Second Offense within 7 Years (Sobriety Court) 45 days suspended, 320 days restricted with BAIID
Third Offense within 10 Years Indefinite revocation 1 year to 5 years
Child Endangerment w/Child u/age 16 90 days suspended, 90 days restricted
Super Drunk (High BAC .17% or greater) 45 days suspended, 320 days restricted with BAIID
Impaired Driving (OWVI) 90 days restricted
Zero Tolerance, Under 21 w/.02% – .07% 30 days restricted
OWI/Causing Injury Indefinite revocation
OWI Causing Death Indefinite revocation
Other Felony Convictions w/Motor Vehicle Revocation or Suspension
First Offense Drug Crime  30 days suspended, 150 days restricted
Second Offense Drug Crime  60 days suspended, 305 days restricted

A person issued a restricted license  may operate a vehicle, to and from any combination of the following places:

  • In the course of the person’s employment/occupation.
  • The person’s residence.
  • The person’s workplace.
  • An alcohol, drug or mental health education treatment program as ordered by the court.
  • AA or NA meetings.
  • An educational institution at which the person is enrolled as a student.
  • A place of regularly occurring medical treatment for a serous condition or medical emergency of the person or a member of the person’s household.
  • An ignition interlock service provider (for those required to have a BAIID device).
  • The judge has discretion to permit a minor’s custodian to drive to a day care center or educational institutional where the child is enrolled.

An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Michigan Department of State. The process to regain driving privileges is known as a driver’s license restoration proceeding.

The Science of Blood Alcohol Content (BAC)

Shot, Beer, and Wine

Legal intoxication means the amount of alcohol contained in one’s blood (reported as a percentage) that will constitute drunk driving (operating while intoxicated). Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, a BAC of .08% or more is considered legal intoxication, regardless of actual intoxication. If a person has a BAC of .17% or greater, the charge to SUPER OWI or OWI with High BAC. A search warrant for a blood test may be obtained when a chemical test is refused or under circumstances where the police are seeking a blood test for drugs or marijuana. If the Secretary of State finds that the refusal was not reasonable, the offender’s license will be suspended for a one (1) year period pursuant to Michigan’s implied consent laws.

Drink/weight BAC index charts, such as the one below, are a fairly reliable source of information on the subject of blood alcohol content.

DUI BAC CHART MALE & FEMALE

 

Unfortunately, this whole process is technical, confusing and often catches people by surprise. Seniors citizens are especially vulnerable as they usually avoid alcoholic beverages because of medications or other age related health concerns. In addition, senior citizens, like most people, rarely understand their individual tolerances to alcohol and how much alcohol consumption is required to be legally intoxicated. The science of alcohol elimination from the body also plays a role in a person’s BAC. Just as alcohol is absorbed in a person’s blood over time, it is also eliminated. Although each person has a unique metabolism rate, it is estimated that alcohol is eliminated from the body at the rate of .015% per hour after hitting a peak BAC.  At this rate, it takes an estimated 70 to 90 minutes, or longer, for the human body to eliminate a single drink. A single drink = 1.5 oz. shot of 80 proof hard liquor, a 5 oz. glass of wine (12% alcohol) or a 12 ounce beer (5% alcohol).  See hours to zero chart below:

HOURS TO ZERO

Once behind the wheel of a car after consuming alcoholic beverages, ignorance of the law is not a excuse and the law enforcement officials do not discriminate even for those individuals that have never been in trouble.

Representing OWI Offenders in Macomb County

Getting charged with an OWI is a horrible ordeal. Being arrested and spending the night in jail is something that most of our clients have never experienced and don’t easily forget. Getting past these traumatic events requires an action plan by attorneys that specialize in handling  Macomb County drunk driving cases. There are different degrees of operating while intoxicated and various factors that can result in more serious criminal charges. A simple first offense OWI can turn into a “Super DUI” if the BAC is .17% or greater. Three lifetime offenses for operating under the influence is a felony that can carry five (5) years in prison. Our initial inquiry will usually consist of the following:

  • Prior record for driving under the influence and age of prior offenses.
  • Prior record for all other crimes, felonies and offenses involving alcohol and drugs.
  • Test results for alcohol, drugs.
  • Whether there was an accident involving property damage, injuries or death.
  • Was client cooperative with the police or involved in fleeing or resisting arrest.
  • Are any other charges being pursued such as fleeing, leaving scene of accident, driving while suspended.
  • Legal issues to explore: testing protocol, proof of operation, validity of traffic stop.

The Court Process in Macomb County

Drunk driving cases are crimes and the court process is governed by the rules of criminal procedure. A person charged with a crime is entitled to protection under the United States Constitution pursuant to the Bill of Rights. Whether it is a misdemeanor or felony drunk driving, the accused is entitled to discovery of all reports, test results, witness statements, accident reports and video/photographic evidence. In addition, the accused is entitled to a trial by jury. The following is a basic framework of the court process in Macomb County for OWI cases:

  • ARREST: Misdemeanor OWI: The accused is held in jail until BAC drops and then released with legal papers after posting a bond. Attorney can waive formal arraignment in court.
  • ARREST: Felony OWI: The accused is held in jail and appearance is required for formal arraignment before a judge or magistrate.
  • Arraignment: May be waived by attorney for misdemeanor OWI in most Macomb County Courts. An appearance is mandatory for felony OWI and an attorney’s presence is required. An attorney can often save a person from having to use the services of a bondsman. Upon arraignment, bond conditions are also imposed that testing and travel restrictions.
  • Blood Draw: The accused may be formally charged pending blood results or released and later charged when the blood test results are returned. It can take several weeks and sometimes months for blood tests to be returned.
  • Discovery: The process of obtaining all evidence in a criminal case. Discovery may also include an independent investigation, accident reconstruction, obtaining witness statements and obtaining independent analysis of breath or blood samples.
  • Pretrial Conference:pretrial conference is a meeting between the  defense attorney and the prosecutor. The majority of cases in Macomb County, 90% or more, are resolved after one or more pretrial conferences.
  • Probable Cause Conference/Preliminary Examination: Probable cause conference and preliminary examination are proceedings that are scheduled for crimes that are classified as felonies. Similar to a pretrial conference, a felony can be resolved at the probable cause conference stage of a criminal case.
  • Motions: When a judge is needed to address a matter before trial, a motion is filed to make the request. These requests are often necessary when the prosecutor will not dismiss a defective case or certain evidence should be admitted or excluded.
  • Plea Bargain: A plea bargain usually means that the original charge has been amended or reduced to something much more favorable. A plea bargain can occur at any stage of a criminal case even during a trial. The prosecutor will consult with any victim and arresting law enforcement officer to get approval for certain plea bargains. A plea bargain may fall apart if the victim or law enforcement officer do not
  • Trial: The prosecutor is required to prove the accused guilty beyond a reasonable doubt (this applies to all crimes and drunk driving).
  • Substance Abuse Evaluation and /or Presentence Report: A substance abuse evaluation is MANDATORY If the accused if found guilty or pleads guilty to operating while impaired or intoxicated. A presentence report is mandatory if convicted of any felony.
  • Sentencing Phase: At the sentence stage, the court will hear from the probation department, prosecutor, defense attorney, defendant and any victim that may be involved.

What about driving under the influence of marijuana?  

The question is whether someone can be charged with driving under the influence of marijuana since it i now legal in Michigan for medical  and recreational use. The answer to this question is YES.

Unlike drunk driving which has established legal limits (OWI = .08 or greater, Super OWI = .17 or greater) and equipment (breathalyzer) to measure an individual’s blood alcohol content (BAC), no such legal limits (THC nanogram levels) or testing instrument has been approved for marijuana. Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

Michigan laws are in a state of flux regarding the offense operating under the influence of marijuana.  The court system is left with different rules for those that have medical marijuana cards and those without. In general, the blood test results (THC nanogram levels) alone are insufficient to convict without other proof of impairment. There are a multitude of legal challenges that can be made in these cases especially when the blood test does not account for active THC or there is a lapse in time when marijuana was last used.

What can someone charged with an OWI expect in the Macomb Courts?

Getting a dismissal is a top priority in every criminal or drunk driving case. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request (for a reduction) or negotiating a plea bargain. Recent statistics indicate that approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. Our Macomb County district courts are no exception.  Plea bargaining can result in reduction in the charges as well as recommendations for leniency at the sentencing phase of the case.

The following are the most significant variables that come into play during negotiations (plea bargaining) and sentencing:  offender’s prior criminal and drunk driving record, test result scores and whether there was an accident. Being uncooperative with law enforcement officers during the arrest process can also be a negative barrier to negotiations and the final outcome of a criminal case.

In general, those with a bad record, have scored high on drug/alcohol tests and have been in accident (especially with an injury), will have a more challenging case than someone with a clean record, low test results and no accident.

-No prior record, no Accident, low BAC (under .16), no substance abuse problem, cooperative with police: I would call this best case scenario. A person charged in Macomb County with an OWI in this position is likely to get a reduction to “impaired driving” with a sentence as follows:

    • Fines/costs range from $900.00 to $1500.00, depending upon the court.
    • 1 year probation (a strong argument can be made for non-reporting probation.
    • Testing is likely in most Macomb County County courts.
    • Community service is unlikely in most Macomb County courts.
    • Attending some form of counseling is likely in most Most County courts (usually a short program consisting of 1-8 sessions).
    • Most Macomb County judges will consider modification of probation and testing requirements if there has been at least 6 months or more of compliance.

-Super OWI, High BAC (.17 or greater): Getting charged with OWI with a high blood alcohol content (BAC) of .17 or greater in Michigan means stiffer penalties and being labeled a “super drunk driver”. For whatever reason, we are seeing a greater number of clients charged with “super drunk driving”. In 2018, approximately 660 individuals were tested by  the police in Warren, Shelby Township, Sterling Heights and Clinton Township with 301 registering a BAC of .17 or greater. If convicted of “super drunk driving”, the offender is required to have a Breath Alcohol Ignition Interlock Device (BAIID) on any vehicle he or she intends to operate for a period of 320 days after serving out a 45 day driver’s license suspension with no driving privileges.

The challenge in High BAC cases is to get the charge reduced to an offense with a lesser stigma and penalties, such as OWVI (operating while impaired) and to convince the judge that our client does not have a drinking problem. You increase your chances of doing so by getting an attorney that knows the local court system and has experience handling super OWI cases in Macomb County. Unfortunately, an attorney that does not know the system or lacks experience can be a costly mistake.

-OWI Second Offense within 7 Years: Along with possibility of jail, a second offender faces mandatory license revocation upon being convicted of a second drinking and driving offense within a period of 7 years or a third conviction within a 10 year period. There are NO driving privileges allowed during a period of revocation. For those facing license revocation, driving privileges can be saved if the person is accepted in a Sobriety Court program. The Sobriety Court program allows eligible individuals convicted of certain drunk driving offenses to obtain a restricted driver license with installation of an ignition interlock device (BAIID) on vehicles they drive and own. There are Sobriety Court programs in Clinton Township, Roseville and Warren and other courts that are in the process of getting grants for these programs. You may be eligible to apply for Sobriety Court in one of these courts if you are charged with an OWI second offense in a court that does not have a Sobriety Court program.

-FELONY, Third Lifetime Offense Operating While Intoxicated or Impaired: A person convicted of OWI with two prior offenses in his or her lifetime faces the following penalties:

  • $500 to $5,000 fine, and either of the following:
    • 1 to 5 years imprisonment
    • Probation, with 30 days to 1 year in jail.
  • 60 to 180 days community service.
  • Driver’s license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years).
  • License plate confiscation.
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited.
  • Possible vehicle forfeiture.
  • Vehicle registration denial.
  • 6 points added to the offender’s driving record.

You may think the odds are against you if you are charged with an OWI 3rd (felony) but that is not necessarily the case. If you find yourself in this position, you need to a solid action plan for the best chance to get the felony dropped down to a misdemeanor in the court system. In avoiding a felony, our clients have been able to avoid jail, retain their right to own firearms, retain driving privileges, retain valuable career licenses and not be labeled a felon!

Fighting for non-reporting probation, no testing, a limited counseling program (1 day class) and other leniency are realistic goals for individuals that qualify as isolated offenders and do not display a problem with alcohol.

Collateral Consequences of a OWI Conviction

  • CPL rights: A person convicted of a drunk driving offense (either OWI or impaired driving) will lose CPL rights for 3 years. There are no exceptions to this rule.
  • Felon may not Possess a firearm: A person convicted of a felony many not own or possess a firearm pursuant to both Federal and State of Michigan laws. Possession of a firearm by a felon constitutes a felony punishable by up too 10 years in prison.
  • Canada inadmissibility:  Based upon Canadian immigration laws, a person that has been convicted of driving while impaired by alcohol or drugs will probably be found criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.
  • Police response costs:  In recent years, the costs incurred by the responding police agency are subject to collection for a person charged with a drinking and driving offense. I have seen these costs run anywhere from $300.00 to $600.00.
  • Expungement: The process of expungement (setting aside a conviction) is controlled by rigid rules in Michigan. Unfortunately, all traffic and drunk driving cases are ineligible for expungement. There are no exceptions to this rule.

Can a drunk driving case ever be completely dismissed?

I am sure you are wondering whether a drunk driving can be completely dismissed. There are various legal avenues that can be pursued which may result in a dismissal, major reduction or not guilty verdict of a drunk driving case which include: filing a deviation request, filing a motion to dismiss and/or proceeding to a trial.

Deviation request:  A deviation request is a formal request with supportive material to seek a favorable outcome when the policy of the prosecutor otherwise is against any plea bargain. Our firm utilizes deviation requests extensively in our criminal and drunk driving cases when a client has several positive factors and we feel that the prosecutor will consider a compassionate outcome.

Motion to Dismiss:  Many cases can be won prior to trial with a properly drafted and researched motion to dismiss. A motion to dismiss can be filed for a number of reasons including:

  • Suppression of test results (failure to follow protocol in the testing process).
  • Failure to establish an element of the crime (such as operation of the motor vehicle, parked vehicle).
  • Invalid traffic stop.

A motion to dismiss may also result in a plea bargain when the prosecutor does not want to run the risk of holding a hearing on a motion to dismiss.

Trial: Any person accused of a crime, including drunk driving offense, is afforded the right to a trial by the 6th Amendment to the United States Constitution. A trial may be held before a judge or jury. The judge or jury  is required to return a verdict of not guilty unless the case is proven beyond a reasonable doubt.

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The stigma and embarrassment associated with a conviction for indecent exposure or gross indecency can last a lifetime. Behavior associated with sexually related crimes is no longer just limited to adult offenders. Juveniles are becoming more sexually active than at any other time with the availability of sexually explicit content on the internet. In addition, much of what occurs in public places is subject to video surveillance which can be preserved as evidence against individuals charged with these crimes. In defending those charged under these statutes, our Macomb County criminal defense attorneys may recommend that our clients engage in counseling as a proactive measure. A positive counseling report can be utilized in the court system to seek a favorable resolution and validate that a particular client is not a predator, is not likely to re-offend and is not a risk to the public or children. Many cases that we have handled in our Macomb County Courts, especially for indecent exposure, qualify as isolated incidents with a low likelihood of being repeated. However,  certain compulsive behavior, such as sex addiction or exhibitionist disorder, may require a regimen of long term counseling.

Indecent Exposure

The offense of indecent exposure is a misdemeanor. MCL 750.335a defines the conduct and penalty for the offense of indecent exposure in Michigan as follows:

(1)  A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.

(2)  A person who violates subsection (1) is guilty of a crime, as follows:

(a) Except as provided in subdivision (b) or (c), the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.

(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.

Gross indecency is a Felony

The offense of gross indecency is serious felony which can carry 5 years in prison. The offense is covered by MCL 750.338b and provides as follows:

Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. Any person convicted of a felony as provided in this section shall be punished by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.

Maximum Penalty of Life in Prison if Labeled a Sexually Delinquent Person

Under certain circumstances, indecent exposure or gross indecency can be punished as a felony which can carry a maximum term of life in prison if committed by someone who is classified as a sexually delinquent person. Pursuant to MCL 750.10a, the term “sexually delinquent person”, shall mean any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.

Identifying Reasons for Deviant Sexual Behavior

Public displays of nudity may constitute an isolated incident or occur as the result of intoxication.  Indecent exposure in a public place may also be a sign of a psychological problem (exhibitionist). The offense of gross indecency is a more serious offense. Gross indecency cases usually involve a sex act in a public place. In either case, our firm may recommend a counselor for an evaluation and recommendation.

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Drug Crimes, Assault Crimes, Theft Crimes Highest on the List of Most Frequent Felonies in Michigan

Being accused or charged with any crime, misdemeanor or felony, is a serious matter requiring the expertise of a criminal defense lawyer. A crime classified as a felony is invariably worse than a petty crime or misdemeanor. A felony is defined as an offense that can carry more than 1 year in jail up to life in prison. If the offense carries 1 year or less in jail, it is classified as a misdemeanor.  In addition to the possibility of jail/imprisonment, felonies have other consequences including: loss of rights to own or possess firearms, up to 5 years probation, possible term of imprisonment, international travel restrictions and the stigma of a felony conviction.

While researching cases, we came across an  article written by the Michigan Bar Association regarding the Top 50 Felonies Most Frequently Charged in Michigan in the State of Michigan. This list of cases also is consistent with the caseload that our Macomb County criminal defense lawyers see on the dockets of courts located in Macomb, Oakland, Wayne and St. Clair counties.

With more than 35 years experience specializing in criminal defense, I can say that the majority of our clients facing felony charges have never committed a prior felony and the underlying conduct supporting the felony charge does not involve egregious misbehavior.  Nonetheless, a felony charge is possible even for offenses involving simple possession or when a theft involves property valued greater than $1,000.00.

Top Felonies in the Metro-Detroit Courts

Pursuant to the Michigan Sentencing Guidelines, felonies are 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

 

Below is a list of the most prevalent felony crimes that we routinely handle in the Metro-Detroit courts and that also that fall within the top 50 felonies in Michigan.

Crime Statistics for Macomb County

The Michigan State Police maintains annual crime reporting statistics for each county in the State of Michigan. For 2017, approximately 50,000 crimes were reported in Macomb County. As criminal defense attorneys in Macomb County, these statistics are meaningful in various ways. The economy, social influences (“me too”), crime waves and police practices are all factors that can have a bearing on crime reporting. Statistics indicate that all larcenies constitute the largest number of crimes reported. Nearly 10,000 larceny related crimes reported which include the following:

  • Larceny from a building
  • Larceny from a motor vehicle
  • Larceny misdemeanors (under $1,000) and Larceny felonies (over $1,000)
  • Theft of motor vehicle parts and accessories

Retail fraud (shoplifting) offenses are not included in the above statistic. Separately, approximately 2,500 retail fraud cases were reported in Macomb County for 2017. Retail fraud is classified as a misdemeanor when the amount involved is under $1,000 and a felony if the amount involved is $1,000 or more. The cities in Macomb County that reported the highest number of retail fraud for 2017 were: Roseville (536), Warren (463), Sterling Heights (425), Chesterfield Township (265)  and Clinton Township (209). The numbers for these cities are not surprising considering that these areas all have large retail centers and stores (Target, Meijer, Kohl’s, Costco, Sam’s, Walmart) within their jurisdiction.

Drug Residue or $1.00 more than $999.00 May Lead to a Felony Charge!

DRUG CRIMES: Simple possession of drugs tops the list of felony crimes in Michigan. The drug crime of possession of marijuana is classified as a misdemeanor.  As I have stated, a felony charge may be lodged for unintended behavior. For example, a person may be charged with felony possession of drugs when a police search reveals a minuscule quantity of drug residue. Felony charges can be prosecuted even though the drug residue is unusable, un-measurable and is scraped from a pipe or from the carpet of a vehicle. In researching this matter, I found that the prosecutor in Harris County, Texas has a adopted a policy to avoid prosecuting those found with drug residue. While this is a step in the right direction, Michigan has not adopted this policy. In addition to residue cases, drug charges may be brought against an innocent passenger of a motor vehicle because drugs are found in a compartment or area of the vehicle within reach, possession or view of the passenger(s).

THEFT & PROPERTY CRIMES: Several other felony crimes fall within the theft offense, or property crime category, including retail fraud, embezzlement, credit card fraud, uttering and publishing. A crime can be elevated from a misdemeanor to a felony without any intent or deliberation to wind up in that position. For example, if a theft related offense (embezzlement, retail fraud 1st degree) involves a claim of loss of $1,000.00 or more, the prosecutor will bring a felony charge. If the amount of loss is $999.00 or less, it is a misdemeanor. The danger and concern that exists is when the alleged victim makes a claim that is greater than the actual loss. Not all property crimes are dependent upon the property value. Crimes such as uttering and publishing, credit card fraud, larceny in a building, larceny from a motor vehicle constitute felonies without regard to the value of property misappropriated. Michigan State Police statistics for 2017 indicate that more than 7,000 crimes relating to larceny were reported in Macomb County.

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Joe-Liberty-Selfie-for-blogAuthor: Joseph A. Campbell


Imagine this scenario: Your child is riding along M-59, Big Beaver, or Woodward Avenue, in a car with friends going out to dinner, but your child is not the driver. Then, the vehicle gets pulled over because the driver violated a traffic law. Upon approaching the vehicle, the police officer claims that he can smell a hint of marijuana and searches the vehicle. (The smell of marijuana alone can provide probable cause to justify a search).  The police officer finds marijuana in the center console of the vehicle (or other compartment) and arrests everyone, including your child, regardless of the fact that the marijuana was not theirs.

girl-smokign-weed-in-car-for-blog
As a caring parent, you’d wonder whether your child could legally be charged with possession of marijuana even though it wasn’t theirs or they didn’t use it? The short but unfortunate answer is: Yes, they can. Charges for possession may be brought against passengers who do not legally own the marijuana (or other drugs), do not have it in their personal possession, and do not know that it is somewhere within the vehicle.

youthful offender

HYTA is available for criminal offenders ages 17 – 23

The result of a HYTA disposition is that:

  • The court does not enter a judgment of conviction,
  • The record is sealed, and
  • The case is dismissed upon compliance!  

In Michigan, a person is charged as an adult for criminal offenses that occur at age 17 and older. This may be a surprise to most people since other laws treat individuals that are under age 18 as minors. However, Michigan’s Holmes Youthful Trainee Act, commonly known as HYTA gives a youthful offender (ages 17 to 23) a chance to keep a criminal offense, including felonies, off of his or her record.

The essence of HYTA is that it allows for dismissal of eligible criminal offenses committed by youthful offenders. This statute applies only to offenders that are age 17 but before age 24. HYTA is not available for juvenile offenders, those under age 17; or for offenders that are age 24 or older. The dismissal of a criminal offense pursuant to HYTA is tantamount to an expungement. Dismissals pursuant to HYTA means that the offender avoids the stigma and public record of a criminal conviction. Subject to some exceptions, HYTA is available for most felonies and misdemeanors. HYTA is extremely valuable because if someone is applying for a job, applying to college, or filling out an employment application, they would be able to exclude any offenses dismissed pursuant to compliance with HYTA.

A person who seeks HYTA is required to formally plea guilty to the offense or offenses which are being considered for HYTA status. However, once the court accepts someone on HYTA status, the court does not enter a judgment of conviction and Michigan State Police records become closed to the public view.

How does someone get HYTA status?

HYTA status is not guaranteed and may be accepted or rejected in the judge’s discretion. HYTA is obtained by an attorney negotiating this favorable disposition with the prosecutor and petitioning the court to accept the same. Since HYTA may be rejected by the court, it is vital that an attorney be retained in order to gain the best advantage in the legal system.

HYTA status may also mean the imposition of probation, random testing for alcohol and drugs, counseling and payment of restitution. Restitution may be ordered in cases involving damage to property (home invasion, malicious destruction of property) or economic crimes (larceny).

Here are some other pertinent facts about HYTA:

  • There is no limit on the number of cases which may be placed on HYTA status.
  • Juvenile offenders (under age 17) are not eligible for HYTA but may be eligible for a disposition in the juvenile system with the same impact
  • Age 17 to 20: HYTA is subject to the Judge’s discretion and prosecutor’s consent is not required
  • Age 21 to 23: Prosecutor MUST consent to HYTA
  • HYTA is not guaranteed and may be rejected subject to judge discretion
  • HYTA is not available for traffic violations or drunk driving
  • HYTA may include jail, probation, counseling and restitution to any victims

HELP: Will anything show up on my record if my case is dismissed under HYTA status?

Our attorneys are asked this question every single day. As we have explained, HYTA specifically says that upon the court’s acceptance of HYTA status, there is no adjudication of guilt, the record is sealed and the case is dismissed after a period of time which is set by the court. The benefit of HYTA cannot be overstated. It is an excellent deal which we have used to get hundreds of criminal charges DISMISSED. As far as the record of an individual is concerned after getting a case dismissed upon compliance with a HYTA disposition, we can only say that it will be sealed by the court and the Michigan State Police and the public will not be able to view your record.  Should anyone contact the court about your record after HYTA has been granted, the court employees are instructed to say: “THERE IS NO PUBLIC RECORD” and “THE EXISTENCE OF HYTA RECORDS CANNOT BE DISCLOSED“.

Unfortunately, HYTA protection is limited and does not mean that your record is destroyed, disintegrates or vanishes.  The history of all criminal cases, including those disposed of pursuant to HYTA status, are forever maintained by the court, FBI and Michigan State Police. In addition, Michigan law gives  certain entities (courts, law enforcement) access to HYTA records that would otherwise be classified as non-public. In our experience, several other powerful entities are given access to HYTA records including: financial institutions, educational institutions, utility companies, and health care companies.

HYTA is not available for DUI, traffic offenses, life offenses and other listed crimes

HYTA is available for most criminal offenses including felonies and misdemeanors. However, the HYTA statute lists various offenses which are not eligible for HYTA status as follows:

  • Traffic offenses, including Operating While Intoxicated
  • An offense which carries a maximum penalty of life in prison
  • Major controlled substance offenses
  • Most criminal sexual conduct crimes

Our Macomb County criminal defense lawyers have been successful in negotiating HYTA for youthful offenders charged with serious felonies, drug crimes, assault crimes and terrorism.

How do I answer questions about my HYTA case on employment applications?

Fortunately, the great majority of employment applications asks whether the applicant has ever been convicted of a felony or misdemeanor, not whether they’ve been charged. This is precisely where taking a plea pursuant to HYTA shines brightest. Once an individual pleas pursuant to HYTA and successfully completes their sentencing terms,  there is no entry of a guilty conviction on their record. Therefore, an applicant who plead guilty pursuant to HYTA can check “NO” if the application asks whether they’ve ever been found guilty or convicted of a misdemeanor or felony because there is no entry of a guilty conviction on your record after successfully completing HYTA sentencing terms.

When HYTA is done, get a copy of the dismissal from the court: To be diligent, we advise our clients to obtain a copy of their case dismissal from the sentencing court immediately after successfully completing their terms of sentencing under HYTA. By doing so, our clients possess actual verification that the matter has been dismissed and have proof that may be needed future questions or misunderstandings regarding their criminal history.

 

Creative legal solutions to get HYTA for ineligible crimes and offenders

Ineligible offenses: Sometimes, we are called upon to defend a client that is charged with an offense that is not eligible for HYTA. In such a case, we may attempt to seek a plea bargain to have the prohibited HYTA offense amended to an offense which is compatible with a HYTA disposition.

Offenders over age 23: When an offender is over age 23, HYTA is not applicable. In rare situations, our attorneys have been able to have the occurrence date of the crime amended to an earlier date (when the offender’s age would be under age 24) to allow the proceedings to comport with the HYTA statute.

Other Michigan provisions which are similar to HYTA

There are other criminal cases which can be resolved by laws which are similar to HYTA. They are as follows:

The above provisions may only be utilized once in a person’s lifetime. On the other hand, HYTA can be applied on an unlimited basis provided the offense and the offender are eligible and the judge accepts HYTA as part of the disposition. However, the likliehood of getting HYTA when someone has a prior record is remote.

In theory, with the right lawyer, a person can have several offenses dismissed in his or her lifetime by knowing how to petition the court for application of these alternative sentencing provisions of law.

 

BEWARE:

A person who is awarded HYTA status may be incarcerated. This is usually not the case unless there are compelling or aggravating circumstances. HYTA usually entails a term of probation with whatever conditions that the court deems appropriate for the youthful offender. If the offender violates any of the terms of probation, the guilty plea may be abstracted as a conviction and HYTA status terminated. Should this occur, the conviction becomes a public record and the offender faces punishment and possible incarceration up to the maximum period of time allowed for the particular offense. However, if the person complies with the terms of probation, the case is dismissed at the end of probation and the record remains sealed. A sealed record means that it is not accessible to the general public, private businesses, or by any member of the public who makes inquiry at the court or to a law enforcement agency.

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Image depicting felony “Assault with a Deadly Weapon”

List of Michigan Assault/Domestic Violence Crimes and Maximum Penalty

According to Michigan Crime Statistics, 117,430 assault crimes were reported in 2016. This includes assaults classified as misdemeanors, felonies and domestic violence cases. The following is a list of both misdemeanor and felony assault crimes as contained in the Michigan Penal Code:

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