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License Revocations and Appeals to the OHAO

I wanted to use this post as a forum to reflect on my vast experience handling driver license appeals with the Michigan  Department of State, Office of Hearings and Administrative Oversight (OHAO). The OHAO was formerly called the Driver License Appeal Division or DLAD. The OHAO or DLAD is the place that you go when you are eligible for a driver license restoration hearing.

A person that is classified as a habitual drunk driver or has a felony conviction involving a motor vehicle faces indefinite license revocation. Indefinite license revocations are imposed for the following scenarios:

  • 2 or more offenses for operating under the influence (drugs or alcohol) within 7 years.
  • 3 or more offenses for operating under the influence (drugs or alcohol) within 10 years.
  • A conviction for operating under the influence causing a serious personal injury.
  • A conviction for operating under the influence causing death.
  • A felony conviction which results in license revocation.

Appealing a license revocation: Evidence MUST be consistent!

There is a long list of evidence that is required and must be submitted before a client can get an OHAO hearing:

  • Form 258: Current substance abuse evaluation.
  • Form 257: Petitioner’s background.
  • Drug Screen: 12 panel drug test with at least two integrity variables.
  • Three to six community support letters (we may ask for more), preferred to be from a cross section of individuals (family, co-workers, friends, neighbors).
  • Doctor’s letter may be required depending upon medical history and current use of certain prescribed drugs.
  • DI4P: Physician’s Statement if a medical situation has caused impairment, loss of consciousness or could affect safe driving.
  • Optional: Evidence of attendance at support meetings, counseling, AA.
  • Optional: Other positive documentation such as completion of probation, Sobriety Court, etc.

Link to forms 257 and 258, license appeal hearing

Hiring an attorney that knows the OHAO process should be your first priority if you are thinking about a license appeal. The license restoration process is very particular and specialized. Just because you waiting several years for a hearing, went to jail or need a license to work does not mean that you will win your hearing. I could say that your evidence must be consistent. It is probably better to say that your evidence muse be almost perfect!

You will lose your hearing if your evidence does not prove that you are likely to remain sober. You must be able to c0mmunicate your case to the OHAO with supportive evidence that you understand your duty to protect the public and that it is never acceptable to operate a vehicle under the influence of alcohol or drugs, An experienced OHAO practitioner can increase your chances of winning an OHAO hearing by and prepare you for your evaluation. The following are examples of just a few ways that you can lose your OHAO hearing:

  • Inconsistent sobriety dates for alcohol and drugs.
  • Failure to mention all prior criminal offenses involving alcohol or drugs.
  • Failure to maintain unbroken sobriety.
  • Failure to obtain a doctor’s letter if you are taking certain medications for sleep, pain or psychological reasons.
  • Substance abuse evaluation (form 258) is not complete, does not cover all substances used or has a marginal prognosis.

Getting you ready for your hearing

In the aftermath of Covid-19, OHAO hearings are now held remotely via Microsoft Teams.

Oftentimes we represent clients who have already attempted a hearing without the help of counsel. Even though they have winning cases, they lose simply because they did not know how to present their case to the OHAO. An individual that appears before the OHAO must be able to testify as to their past and also as to their present and future behavior. A person’s background regarding use of alcohol and drugs is scrutinized because the State of Michigan owes a huge responsibility to the drivers of Michigan, and the burden is on the petitioner to show they are again worthy of the privilege of driving.

Proceedings before the OHAO are very unique. First, most clients are surprised to hear that they are not adversarial, per se. Additionally, most are not aware that the hearing officer is going to ask probing and invasive questions about their substance abuse history. Lastly, and perhaps most importantly, many people do not realize there is a RIGHT way to approach these hearings and answer the questions.

That being said, our office has developed a paradigm for approaching all cases. From our first consultation we explain to clients the strengths and weaknesses of their case, and give an honest assessment of if the matter is worth pursuing. Our track record with these types of cases is very good, we generally win. We know how to win and what is expected because our lawyers have appeared before each OHAO officer as much as any other attorney in the State of Michigan.

Winning your license restoration hearing

When you win your license restoration hearing after serving a mandatory period of revocation, you will be allowed to drive with some restrictions and requirements. At the very least, the OHAO will require the installation of a Breath Alcohol Ignition Interlock Device (BAIID). In addition, the petitioner will only be allowed to drive for designated purposes, such as employment, or for designated days and hours.

After successfully abiding by the restrictions and requirements for a period of at least one (1) year, the individual may file an appeal to the OHAO for a FULL RESTORATION OF LICENSE. The same documentation (form 257, form 258, character letters, etc.) must be supplied to the OHAO, along with a current BAIID report, before a full license restoration hearing can be scheduled.,

The Breath Alcohol Ignition Interlock Device (BAIID)

In Michigan, you are considered a habitual drunk driver if:

  • Two or more DUI convictions within 7 years.
  • Three or more DUI convictions within 10 years.

Habitual offenders that are able to get their license restored will be allowed to operate a vehicle that has a BAIID device installed. As we have discussed, a person that has multiple driving under the influence convictions will not be eligible to appeal for a license until the minimum revocation period has been served. After serving the minimum revocation period, the party is required to prove his or her case before the OHAO. If you are well prepared and your evidence is consistent, you can expect to win your hearing and be granted a restricted license with the BAIID device.

A BAIID is a technical device that measures a person’s bodily alcohol content (BAC) and is connected with a motor vehicle’s ignition and other control systems. The BAIID keeps the vehicle from starting if the BAC is .025 or higher. The BAIID also includes a camera which records an image of the individual providing the sample. The device will also require random rolling retests while the person is driving the vehicle.

If there are alcohol readings or other BAIID violations after the device is installed, they will be reported to the Secretary of State as violations. If the BAIID has a false positive violation for alcohol, we strongly urge you to find a location as soon as you can to provide a breath sample that will nullify the false reading. You should also keep a notebook in the vehicle and write down anything to support your case should you be improperly violated.

BAIID VIOLATIONSBAIID violations are classified as “minor” and “major” violations:

Major Violations:

  • Rolling retest violation: Failing to take the retest when prompted by the BAIID; or the random retest detects a BAC of .025 or higher, and there is no sample with a BAC of less than .025 within 5 minutes.
  • An arrest or conviction for drunk and/or drugged driving.
  • Tampering or circumventing with the BAIID.
  • Three minor violations within a monitoring period.
  • Removing the BAIID without having another device installed within 7 days.
  • Operating a vehicle without a properly installed BAIID.

VIOLATION CONSEQUENCES: Minor violations will result in a 3-month BAIID extension. Major violations will result in the immediate reinstatement of your original driver’s license revocation/denial. You may appeal that action to the Office of Hearings and Administrative Oversight within 14 days and should consult with a lawyer if you find yourself in this position.

Go for the win the first time!

We take the time to learn each client’s unique case history and work on tailoring each case to that individual’s circumstances. We believe in each client’s cause and fight aggressively to get petitioners back on the road. Our office has a strong record of winning cases like this. We have a proven formula that gets results.

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According to 2019 Michigan State Police records – 4,933 crimes were reported to the Clinton Township Police. The majority of crimes reported were for larceny, retail fraud (shoplifting), operating while intoxicated (OWI), OWI with a high BAC (.17 or more), domestic violence and assault crimes. The jurisdictional geographical boundaries of the 41B District Court include Clinton Township, Mt. Clemens & Harrison Township. 

41B District Court Information, Location, Zoom Identification

The 41B District Court  has jurisdiction to handle civil, traffic and criminal cases arising in Clinton Township, Harrison Township and Mount Clemens.

Clinton Township has its own police department while Harrison Township and Mount Clemens employ the Macomb County Sheriff’s Department for police services. The 41B District Court is served by 3 judges: Judge Sebastian Lucido, Judge Jacob Femminineo and Judge Carrie Lynn Fuca. In 2020, Judge Femminineo replaced long standing Judge Linda Davis. Judge Linda Davis is now active in the organization that she spearheaded, Families Against Narcotics (FAN).

41B District Court has an expansive jurisdiction with east to west borders from Lake St. Clair in Harrison Township to Hayes Road, and north and south borders from 14 Mile Road to Hall Road. The area has a diverse mixture of established and newer real estate, shopping centers, major retailers (Target, Walmart, etc.) Macomb County Community College, and the Partridge Creek Mall. The Macomb County Sheriff’s Department and the Clinton Township Police are the predominant law enforcement agencies in the area.

More than 10% of the total number of crimes in Macomb County are reported in 41B District Court boundaries. In 2019, there were 41,683 crimes reported in Macomb County with 4,933 being reported through the Clinton Township Police Department and several more reported to the Macomb County Sheriff Department.

We are frequent practitioners in the 41B District Court with more experience in that jurisdiction than any other attorneys in Macomb County.  In our opinion, the 41B District Court will give a person a second chance and has a philosophy to encourage rehabilitation and therapeutic justice rather than jail and punitive measures. 

Hire a lawyer now! Court personnel cannot give legal advice and the prosecutor does not represent you!

The court staff, the prosecutor and judicial officers are forbidden by law to provide you with legal advice. If you are facing a criminal or drunk driving matter in the 41B District Court, you need a skilled Clinton Township criminal defense lawyer to fight for your rights and get your life back on track. The 41B District handles a wide range of the criminal cases that occur in Clinton Township, Harrison Township and Mount Clemens.  The following is list of some of the most prevalent misdemeanor and felony cases on the 41B District Court’s criminal docket:

Crimes involving firearms are also on the rise throughout Macomb County. Gun crimes include carry a concealed weapon, brandishing a firearm and possession of a firearm under the influence.

Dismissals, felonies reduced to misdemeanors: There’s always a way to resolve a legal predicament. Just because you are guilty does not mean that you will be found guilty. In many cases, there’s a way to get out of the criminal justice system unscathed and without a conviction or by getting a felony dropped down to a petty offense.  An attorney can explain how all of these special provisions of law are utilized in the 41-B District Court which can result in a dismissal of a criminal matter:

Multiple criminal offenses and drunk driving are eligible for expungement

Michigan has adopted Clean Slate legislation that enables eligible individuals to get multiple offenses, and one drunk driving offense, expunged. For the first time ever (effective February 19, 2022) an individual can file a petition to get any of the following offenses for drinking or drugged driving expunged:

  • Operating While Intoxicated (OWI)
  • Operating While Visibly Impaired (OWVI)
  • High BAC .17 or more or Super Drunk Driving
  • Minor with any BAC (Zero Tolerance)
  • Operating with the Presence of a Controlled Substance conviction

The following driving offenses are not eligible for expungement:

  • OWI with a child (passenger under 16)
  • OWI or Impaired Driving causing serious injury
  • OWI or Impaired Driving causing death.

Retail Fraud Cases in the 41B District Court: DISMISSED!

The offense of retail fraud, also known as shoplifting, can occur when an individual intentionally does any of the following at a retail or business establishment:

  • Conceals property with the intent to steal
  • Changes a price tag or packaging of an item
  • Attempts to defeat the checkout scanner

If you are charged with retail fraud, chances are that you have not been in trouble before and had the money to pay for the goods. If a client is not a US citizen, we will take extra measures in our negotiations to AVOID DEPORTATION. Getting the best 41B District Court retail fraud lawyer is important if you want to keep your dignity, keep your case private, avoid deportation and get the charge dismissed with NO JAIL.

Domestic Violence

Are you being charged with domestic violence in the 41B District Court? Are other attorneys telling you to just plead guilty? Have you been told that you can’t get the no-contact order lifted? Does your significant other, spouse or other side want the case dismissed? If you are in this position, get a Macomb County domestic violence lawyer to explain how you can get the charge DISMISSED, can get the no-contact order lifted and will not be labeled with an assault crime.

Over 200 Charged with Operating While Intoxicated in the 41B District in 2019

There is always a consistently high number of OWI/DUI cases in the 41B District Court. From our experience, you are not looking at jail or losing your license for a first time drinking/drugged driving offense. In addition, if you are charged with a felony OWI/DUI (OWI Third), there is a good chance it can be reduced to a misdemeanor with the right 41B District Court drunk driving lawyers. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. Fortunately, the judges in the 41B District Court have a sentencing philosophy that encourages rehabilitation rather than incarceration.

If a person is charged with Super DUI (BAC .17 or greater), there is a good chance it can be reduced to a lower offense. Using local Clinton Township drunk driving defense lawyers that know the local policies, practices and prosecutors is your best bet if you are looking to get significant deal on any drunk driving case.

All of the 41B District Court Judges have been in private law practice 

The 41B District Court bench all had careers in the private sector running their own law practices. The 41B District Court Judges all know what its like to stand next to another person that is falsely accused of a crime or needs someone to fight for their rights. The 41B District Court is a court system that works with lawyers and those accused of crimes to deliver just and fair results.

From the moment that there is an arrest or a criminal investigation, you need to all of the protection that a local criminal defense attorney can offer. Getting a local Clinton Township criminal defense attorney that knows the system is the best place to start if you are looking to get out of the court system with the best possible outcome.

The 41B District Court Probation Department

It is within the judge’s discretion whether or not to place an individual on probation after being convicted of a criminal or drunk driving offense. For most criminal matters, there will be a period of probation imposed. The maximum period of probation that can be imposed for a misdemeanor is 2 years.  Probation may be non-reporting or require the individual to REPORT (to a probation officer. In certain situations, a skilled criminal defense lawyer can advocate for a short term of probation (3-6 months) or for NO PROBATION.

Probation Violations: The 41B District Court lists various situations that can result in a probation violation:

If you violate your probation for any reason, probation can be terminated, any deal or deferral can be taken away and jail can be imposed. The list below contains common reasons for a probation violation warrant.

  • Alcohol and drug testing violations (failing tests, missed tests).
  • Failure to appear for probation appointments.
  • Getting charged with a new criminal matter.
  • Failure to obtain permission to leave the State of Michigan.
  • Failure to provide current address to the probation department.
  • Failure to attend counseling or program as ordered by the Judge.
  • Failure to pay fines & costs by the due date.
  • Failure to pay restitution.

Probation Modification Hearings: In Michigan, probation can be imposed for up to two (2) years for a misdemeanor offense. While on probation, a person’s right to travel or consume alcoholic beverages can be restricted. Other rights can also be limited or denied while on probation. Probation is an alternative to jail but it also a restraint on personal freedoms and rights. If you are on probation and have been compliant, the 41B District Court Judges may consider modifying or terminating your probation. You will need to talk to an attorney about filing a motion to modify or terminate probation. There are three major reasons that clients ask us to file a motion to modify probation:

  1. Motion to terminate probation early.
  2. Motion to amend probation from reporting to non-reporting.
  3. Motion to amend probation regarding termination/reduction of alcohol/drug testing.

Isolated Incident, First Offender, Not Likely to Get Into Trouble Again: An attorney can advocate for lesser probation, non-reporting probation or a shorter period of probation for eligible offenders.

Traffic Violations in the 41B District Court: Reduced to Avoid Points and Record of any Conviction!

Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 41B District Court. Gratiot Avenue, Metro Parkway, a stretch of I-94 and Hall Road all contribute to the traffic volume in the 41B District Court.  When resolving a traffic matter in the 41B District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident

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41A-SHELBY-DIVISION

Shelby Township Division of the 41A District Court 

41A District Court has divisions located in the City of Sterling Heights and Shelby Township

Macomb County’s 41A District Courts

Divisions located in Sterling Heights and Shelby Township

There are 2 divisions of the 41A District Court in Macomb County which are geographically located directly next to each other but which cover distinctly different geographical regions of Macomb County and each operates under its own set of rules and policies. The fact that they have the same name and that they both come up on searches for the 41A District Court does cause some confusion. Hopefully, this article will settle it once and for all that there are TWO courts called the 41A District Court and what you can expect if you have legal business in these separate and distinct jurisdictions. 41A District Court locations and contact info:

41-A1 District Court, Sterling Heights Division

41-A2 District Court, Shelby Division

Geographical Coverage Map of Macomb County District Courts

The jurisdictional boundaries of the 41A District Courts are expansive. The Sterling Heights division has jurisdiction over the entire city of Sterling Heights from 14 Mile Road to Hall Road. Sterling Heights has its own police department. The Shelby Township division covers a much larger geographical area which includes all of Shelby Township, Macomb Township and the City of Utica. The Shelby division is policed by the Shelby Township Police and the City of Utica Police. Macomb Township employs the Macomb County Sheriff Department for police services as it does not have its own police force. The image below provides a map of the geographical areas covered by each Macomb County District Court:

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Types of Cases Handled in the 41A District Courts

Michigan’s district courts have jurisdiction to handle traffic, criminal and civil proceedings. There are certain limitations to the power the district court has over civil and criminal proceedings.

  • Misdemeanor criminal jurisdiction: The district courts have complete jurisdiction of misdemeanors from arrest warrant, arraignment through trial and sentencing.
  • Felony criminal jurisdiction: The district courts have limited jurisdiction over felony matters which includes arrest warrant, arraignment, probable cause conference and preliminary examination. Felony cases that are not resolved in the district court are moved to the circuit court following a probable cause conference or preliminary examination.
  • Traffic jurisdiction: The  district courts have complete jurisdiction to dispose of traffic matters to their conclusion or final decision.
  • Civil proceedings: The district courts have jurisdiction over civil matters not to exceed $25,000.00. Civil proceedings is excess of $25,000.00 are filed and heard in the circuit courts.

Misdemeanors, felonies and traffic matters are initiated in the district court. Criminal cases are initiated in the court system with an arrest warrant or appearance ticket. For all felonies and most misdemeanors, an arraignment is held in the district court to advise an individual of the charges and to set bond and bond conditions.

Some of the more common criminal matters that are handled in the 41A District Courts include:

What can be expected if I am charged with a crime in the 41A District Courts?

Those with business in the 41A District Courts can expect to be treated fairly by elected judges are compassionate and that will bend over backwards to give an individual a break. The 41A District Courts in both Sterling Heights and Shelby Township utilize all of the statutory first offender programs to facilitate dismissals, including all of the following programs:

Felony cases: If you get charged with a felony, it starts out in the district court. If you get your felony reduced to a misdemeanor, you AVOID A FELONY RECORD and it remains in the district court. Talk to a local experienced criminal defense lawyer to find out how this is even possible.

Drunk driving: If you  are charged with driving under the influence (OWI, OWI with high BAC, etc.) in the 41A District Courts, you are not looking at jail or losing your license for a first offense. Getting a local attorney to fight for the best outcome is your best bet if you are facing a charge for driving under the influence of drugs or alcohol. There are many discretionary components of a drunk driving sentence  including: community service, immobilization of vehicle, random testing for alcohol and drugs, reporting or non-reporting probation. Some of these conditions can be avoided by strategic legal planning beforehand.

Traffic tickets: The court clerks are not authorized to give legal advice. They will not tell you that you can fight a traffic ticket arising in Sterling Heights, Shelby Township, Macomb Township or Utica and get it amended to an offense that carries NO POINTS and will NOT BE ABSTRACTED on your driving record. As we say, it is a wise investment to fight every traffic ticket.

Expungements of old crimes and drunk driving: The 41A District Courts have embraced Michigan’s Clean Slate law and are eager to grant expungements to those that are eligible. In addition, for the first time ever, effective February 19, 2022, an individual may file for expungement of a conviction for OWI, Impaired Driving or Super Drunk Driving. When you get a case expunged, you can say: I have never been convicted of a crime!

Probation Departments of the 41A Districts in Sterling Heights & Shelby 

The district courts in Michigan (including the 41-A Districts) have jurisdiction to handle all aspects of a misdemeanor offense (arraignment, trial, sentence). A misdemeanor is defined as an offense which can carry up to 1 year in jail. If the offense carries a penalty greater than 1 year, it is classified as a felony. Probation may be imposed for a maximum period of 2 years for a misdemeanor. When probation is required, it may be ordered to be REPORTING or NON-REPORTING. Non-reporting is always preferred. However, an individual is placed on reporting probation will be required to check in/report with a probation officer at predetermined intervals (monthly, bi-weekly). A motion can be filed to modify probation as explained below.

Probation violations and motions to modify probation

As the Michigan statute says ( MCL 771.4): All probation orders are revocable but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, or upon request of the probationer. Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.

Probation violations can result in jail time and the assistance of a criminal defense lawyer 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. Failure to comply with any of the conditions of probation will lead to a probation violation hearing and possible termination of probation and jail. Here are a few scenarios that can result in a probation violation:

  • Getting charged with another crime
  • Failing to report as directed
  • Leaving the State of Michigan without permission
  • Missing or failing a drug or alcohol test
  • Failure to pay fines/costs
  • Failure to attend counseling

If you have been compliant with probation (no violations, completed all programs, paid all fines), you may be eligible to file a motion to terminate or modify probation. In filing a motion to terminate or modify probation, you will want to give your attorney proof that you completed any programs, community service and paid all fines and costs. If you intend to file a motion to modify or terminate probation, our firm recommends that you wait until you have served 50% of your probation term. To get the case before the Judge at the half way point, we would recommend that you get started a few weeks beforehand with your lawyer. Continue reading ›

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Leaving the scene of an accident is a crime in Michigan

The dos and don’ts if you are faced with hit and run for leaving the scene of an accident! 

A traffic crash is a traumatic event. We know from experience as criminal defense lawyers that an individual may leave the scene of an accident for many reasons. Leaving the scene of an accident is a possible response if a person is afraid for his or her personal safety to stop under certain conditions. Other reasons are more related to illegal driving scenarios such as when an individual is driving under the influence, driving while license suspended, driving without insurance or has a warrant for his or her arrest.  This publication is written by Macomb County Criminal Defense Attorneys so that you can make the right decision if you find yourself in this situation. 

In Michigan, traffic offenses can be charged as civil infractions or as crimes. The offense of leaving the scene of an accident (aka: hit and run, failing to give identification at the scene of a crash) is charged as a crime in Michigan. Along with drunk driving, leaving the scene of an accident is also one of the most prevalent misdemeanor cases that is charged in the Macomb County District Courts. Leaving the scene of an accident is a serious crime that can carry jail, up to 2 years of probation, a fine, court costs and 6 points. Leaving the scene of an accident causing an injury is a more serious crime than one causing property damage. If you get convicted of leaving the scene of an accident a criminal record will be created, 6 points will go on your driving record, you can be placed on probation and get up to 1 year in jail.

Let us explain what you should do if you have left the scene of an accident or if you are charged with leaving the scene of an accident. You should know that talking to the police without getting sound legal advice or pleading guilty without a lawyer are not your best options. You need to also know that employees in the court system are not permitted to give you legal advice. In this publication, and others, we explain why you should be proactive and that hiring a lawyer to fight every traffic ticket is a wise investment.

This publication is based upon our experience handling criminal cases, leaving the scene of an accident and traffic violations in the following Metro Detroit jurisdictions:

A driver’s duties following an accident

Pursuant to MCL 257.619, The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident with an individual or with another vehicle that is operated or attended by another individual shall do all of the following:

  1. Give his or her name and address, and the registration number of the vehicle he or she is operating, including the name and address of the owner, to a police officer, the individual struck, or the driver or occupants of the vehicle with which he or she has collided.
  2. Exhibit his or her operator’s or chauffeur’s license to a police officer, individual struck, or the driver or occupants of the vehicle with which he or she has collided.
  3. Render to any individual injured in the accident reasonable assistance in securing medical aid or arrange for or provide transportation to any injured individual.

Failing to comply with these duties or failing to stop and give identification at the scene of a crash or leaving the scene of an accident can result in a criminal record, criminal penalties along with administrative sanctions by the Michigan Secretary of State.

Are you facing any of these scenarios?

Do not hesitate to hire a local attorney if you are facing any of these scenarios:

  • You have received a ticket for leaving the scene of an accident.
  • You have left the scene of an accident and sooner or later will be apprehended.
  • You have left your vehicle after an accident and do not know what to do.

An attorney will protect you from making the wrong moves with the police and your insurance company. Don’t be tempted to say that your car was stolen or make up some bogus story that will get you charged with a felony. Once you talk to the police, the police will get names of any witnesses and check out your story . Do you really want to implicate your friends and ask them to lie for you? The police will not tell you that you have a right to remain silent and a right to an attorney unless you have been placed in custody.

You just might not be guilty of anything if you were not aware that an accident occurred or remaining at the scene would have been harmful or obstructed traffic more than necessary.

Leaving the scene to avoid getting nailed for a DUI 

It happens more often than you think. After consuming alcohol,  a person chooses to operate a vehicle and has an unfortunate accident while behind the wheel. The accident may involve a parked car, another occupied vehicle or be a single vehicle accident. The person knows that he or she is intoxicated and doesn’t want to get hit with a DUI. The person makes a decision to leave the scene of the accident believing that it is far better than sticking around and getting charged with drunk driving. Leaving the scene sometimes works out for the offender and sometimes it doesn’t. The driver that leaves the scene, by abandoning his or her car or driving off, will wind up afraid and anxious trying to figure out what will happen next.

Let us help you get your case under control if you have left the scene of an accident. DO NOT call the police and your insurance company and say that your car has been stolen. You will merely be exposing yourself to a felony charge for insurance fraud and filing a false felony report. Once you contact the police, you will asked for additional information that can be incriminating. Only an attorney can give you an accurate plan everything under control.

What to do if you are charged or have left the scene

If you have received a citation for leaving the scene of an accident, contact a lawyer for representation in the court system. If you are freaking out after leaving the scene of an accident and haven’t been caught yet, contact a lawyer to help you sort it out and establish a solid plan to address all of the following urgent matters:

  • Whether or not you should talk to the police.
  • Whether an insurance claim should be filed.
  • Getting your car out of the impound.
  • Dealing with the court system (arraignment, bond, pretrial conference, trial).

Let us explain the dos and don’ts if you are faced with any of the above scenarios:

  • DO retain an attorney to speak on your behalf.
  • DO get yourself cleaned up, sober and in  a better place if you intend to handle the matter with the police without a lawyer.
  • DON’T go home if you expect the police know your identity and your residential address.
  • DON’T make any statements to the police until you have consulted with a lawyer.
  • DON’T send any incriminating text messages to anyone.
  • DON’T say anything to your insurance agent until you have consulted with a lawyer.

There are ways for us to truthfully report the matter to the police without ever mentioning that our client was intoxicated the day before. Insurance fraud and filing a false police report are felonies. We will give you a solid plan to deal with the police, the insurance company and the court system without ever getting charged with a drunk driving or lying to the police! We consider it an emergency if you have left the scene of an accident, have not been home in several hours and do not have a clue what you should do next.

Penalties for leaving the scene of an accident 

Jail-time, losing your license, insurance issues and getting stuck in the court system for up to 2 years while on probation are all possible penalties for leaving the scene of an accident.

It is a crime to leave the scene of an accident pursuant to MCL 257.617a, which provides as follows:

  • 1. Leaving scene causing property damage: The driver of a vehicle who knows or who has reason to believe that he has been involved in an accident upon public or private property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of section 619 are fulfilled or immediately report the accident to the nearest or most convenient police agency or officer to fulfill the requirements of section 619(a) and (b) if there is a reasonable and honest belief that remaining at the scene will result in further harm. The stop shall be made without obstructing traffic more than is necessary.
  • 2. Leaving scene causing an injury: If an individual violates subsection (1) and the accident results in injury to any individual, the individual 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.

Leaving the scene of an injury accident

Leaving the scene of an accident may involve property damage, an injury to another person, or both. There are many factors that can make leaving the scene of an accident more serious. Leaving the scene of an accident involving only property damage with no injuries is a threshold case under the statute. If an injury is involved, the penalties are increased. If an injury occurs and alcohol or drugs are a factor, the offense is likely to be charged a felony, OWI causing an injury, which can carry up to five (5) years in prison. It is the job of an attorney to find ways to minimize the consequences of a more serious charge.

Restitution: Compensation to the victim(s)

Michigan’s restitution statute, MCL 769.1a, gives the court wide discretion to order reimbursement to any victim which arises out of the defendant’s criminal course of conduct.  The statute states as follows: when sentencing a defendant, the court shall order that the defendant make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate. Restitution can include compensation for property damage and injuries such as: collision costs or fair market value of property, medical expenses, cost of psychological treatment to the victim or member of victim’s family and child care!

Restitution can be ordered to be paid during a term of probation. Whenever it is attainable and it will help in negotiations or sentencing, we may encourage our client to pay restitution up front.

Driving off after accident, leaving disabled vehicle at the scene

When the police find a disabled or abandoned vehicle that was in an accident, they are automatically suspicious that the driver was drunk, left the scene to avoid being tested for alcohol and waited to claim the vehicle until after his or her alcohol levels dropped below the legal limit for OWI/DUI. The police will typically put a hold on the vehicle until it is claimed and a statement is made by the owner/driver. This is where an attorney comes in and can talk to the police for you, schedule an interview and arrange to get your car released. If damage is extensive, the vehicle may remain impounded until the insurance company adjusts the damage. DO NOT REPORT THE VEHICLE AS STOLEN! Contacting the police before retaining a lawyer in this scenario is a big mistake. It is far better to let your lawyer do damage control and do all of the talking rather than get caught lying to the police which can lead to other serious felony charges.

 

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Matthew S. Abdo & Cy M. Abdo

What is the difference between criminal traffic tickets and civil infractions?

Traffic offenses are classified as non-criminal or criminal. A non-criminal traffic violation is called a “civil infraction”. Civil infractions do not carry any jail and do not go on an offender’s criminal record. A fine is often imposed for a civil infraction and they usually carry points that will be abstracted on the offender’s driving record. A criminal traffic violation almost always carries points, a fine, along with possible jail and probation. Click here for a link to the Michigan Secretary of State Point System.

In this article, ABDO LAW will explain the differences between various traffic offenses and why you should fight every traffic ticket to avoid points and higher insurance premiums. Avoiding a criminal record may be an additional goal if you are charged with a criminal traffic offense such as leaving the scene of an accident, driving while license suspended or reckless driving. The Michigan Traffic Offense Code contains a complete list of all Michigan traffic offenses along with penalties, points and license sanctions. Here are the goals that we have when we fight a traffic ticket:

  • Avoid points
  • Avoid any offense on driving record
  • Avoid higher insurance premiums
  • Avoid a criminal traffic conviction

Civil Infractions: A civil infraction can result in the following sanctions: points on your driving record with secretary of state and monetary sanction (fine) to the court system. Not all civil infractions result in points or go on your driving record. If you are wondering, there are a few civil infractions which we can get in a plea deal to resolve a traffic ticket and keep a client’s record clean. The following offenses do not appear on your record and do not carry any points: double parking, impeding traffic and sudden acceleration. Yes, the court remains able to assess a fine for these matters. However, insurance rates will not be impacted since these offenses do not show up on your record. That makes it a huge deal to get a traffic offense reduced to a civil infraction which DOES NOT appear on your driving record. Here are a few examples of common civil infractions that can hurt you because they carry points and appear on your driving:

       Civil Infractions                           

  • Speed 1 to 10 mph over limit, 2 points
  • Speed 11 to 15 mph over limit, 3 points
  • Speed Over 15 mph over limit, 4 points
  • FTSACD (rear end accident), 2 points
  • Disobey stop sign, 3 points
  • Disobey traffic signal, 3 points
  • Careless driving, 3 points

Criminal Traffic Violations: When an offense is labeled a crime or criminal traffic violation, it can carry the following sanctions: points, fine, court costs, possible jail and probation. If the matter is a misdemeanor traffic violation, it can carry up to 2 years probation. A felony involving a motor vehicle (such as fleeing or OWI 3rd), can carry up to 5 years probation. Most criminal moving traffic violations carry 6 points. Here is a list of the most common criminal traffic offenses that are also some of  the most prevalent misdemeanors that appear in every district court located in the counties of Macomb, Oakland, Wayne and St. Clair:

       Criminal Traffic Offenses      

Insurance companies get rich when you just pay a traffic ticket!

Don’t surrender to the police, courts and insurance companies when you get a traffic ticket! There is never any benefit to just paying a ticket without trying to fight it. Absolutely Never! Based upon our experience, traffic tickets are fought and won every day in every Metro Detroit district court located in Macomb, Oakland and Wayne counties. Fighting a traffic ticket with an experienced local attorney can save you from getting jammed points and up with higher insurance premiums.

There are ways to avoid points and avoid a ticket from getting abstracted on a driving record?

Yes, there are ways to get traffic tickets under control by avoiding any points and avoiding anything from appearing on an offender’s driving record. Most of the time, an attorney can negotiate for reduction of the ticket which usually means less points. When this occurs, the ticket is amended to an offense such as “impeding traffic” or “double parking” which  are zero point violations that do not appear on the driving record. We understand that you might be  thinking that “impeding traffic” or “double parking” do not have anything to do with the original ticket. However, the key is to AVOID POINTS and AVOID A RECORD!

Clean Slate Law Allows for Expungement of Certain Criminal Traffic Violations

Prior to 2021, a criminal traffic violation was could NOT be expunged in Michigan. Now, under Michigan’s new  expungement rules, certain traffic misdemeanors may be expunged. Also, effective February 19, 2022, an individual may be eligible to get one offense expunged for operating while intoxicated or impaired. There are exceptions to this rule and the following offenses involving a motor vehicle are not eligible for expungement:

  • Any traffic violation involving an injury or death.

Effective on February 19, 2022, a first and only driving under the influence can be expunged.  Whenever in doubt, contact an expungement lawyer  to find out if your case is eligible for expungement.

Links to Macomb and Surrounding Area Courts

Here is a sample of courts that surround our office where we frequently practice and have had success in getting thousands of tickets dismissed!

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youthful offender

Effective October 1, 2021

HYTA is available for youthful criminal offenders ages 18 – before age 26

This is why HYTA dispositions for criminal offenses are such a big deal:

  • The court does not enter a judgment of conviction,
  • The record is sealed,
  • You do not need to disclose the offense if asked if you have a conviction, and
  • The case is dismissed upon compliance with conditions laid out by the court!  

Michigan’s  newest version of the Holmes Youthful Trainee Act (HYTA) goes into effect on October 1, 2021. Prior to October 1, 2021, HYTA applied only to individuals under the age of 24. The latest rendition of Michigan’s HYTA statute provides youthful adult offenders (ages 18 but before age 26) with an opportunity to keep a criminal offense, including serious felonies, off of his or her permanent criminal record.  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. A conviction is not required to be disclosed on an application for employment or education when an individual is given HYTA status. HYTA status can be taken away if an individual fails to comply with the terms and conditions ordered by the court.

HYTA is not available for juveniles (under age 18) or for offenders that are age 26 or older. However, there remain many other provisions of law that can benefit juveniles and adult offenders.

How do you get a HYTA disposition? Rule #1: HYTA applies only for those age 18 but before age 26!

Having an experienced criminal defense lawyer can mean the difference between getting HYTA or winding up with a conviction. Although HYTA requires a formal “plea of guilty”, the court does not enter a judgment of conviction and Michigan State Police records are sealed as soon as the court assigns an individual to HYTA status.

The are several parties to a HYTA disposition including the judge assigned to the case, the defense attorney, the prosecutor and the defendant. The crime victim and charging police agency may also have input when HYTA is requested.  According to the HYTA law (MCL 762.11), the prosecutor shall consult with the victim regarding the applicability of this section. The consent of the prosecutor may be required depending upon the age of the defendant at the time of the alleged offense:

  • Prosecutor’s consent is not required  for offenses committed on or after the offender’s 18th birthday but before his or her 21st birthday.
  • Prosecutor’s consent is mandatory for offenses committed on or after the offender’s 21st birthday but before his or her 26th birthday.

HYTA is not guaranteed and may be rejected by the court. Hiring an attorney that knows the laws and has excellent skills dealing with local judges, police and prosecutors is vital for those that want the best possible advantage in the legal system.

You can get HYTA more than once and other helpful information

The HYTA law has many special features including the following:

  • There is no limit on the number of cases which may be placed on HYTA status.
  • Juvenile offenders (under age 18) are not eligible for HYTA but may be eligible for a disposition in the juvenile system with the same result such as diversion or consent calendar.
  • HYTA is not guaranteed and may be rejected by the judge even if the prosecutor, police and victim consent.
  • HYTA may include jail, probation, counseling and restitution to any victims.
  • The court may require an individual that is given HYTA status to be drug/alcohol tested, maintain employment or attend high school.

The following offenses are not eligible for HYTA

The essence of HYTA is that it allows for eligible criminal offenses committed by youthful offenders to be dismissed and sealed. HYTA is available for most misdemeanors and felonies. However, the HYTA statute lists various offenses which are not eligible for HYTA status as follows:

  • Traffic offenses
  • Drunk driving
  • Major controlled substance offenses
  • Most offenses that under the criminal sexual conduct statute
  • A felony for which the maximum penalty is imprisonment for life.

Charged with one of the above ineligible offenses? Talk to a lawyer about ways to negotiate a plea bargain for a lower offense that qualifies for HYTA status!

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 upon compliance with any conditions spelled out by the court. The benefit of HYTA cannot be overstated. It is an excellent deal which we have used to get thousands 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 addition to law enforcement agencies, other entities are also given access to HYTA records including: financial institutions, educational institutions, utility companies, and health care companies.

Most prevalent crimes are eligible for HYTA

Most non-traffic misdemeanors and felonies are eligible for HYTA status. HYTA status is available for all of the following common criminal offenses:

Although traffic crimes are not eligible for HYTA, we are often able to get them amended to avoid traffic points and a criminal conviction. HYTA is not available in the federal court system. However, the federal court system does have programs, such as diversion, that allows for a federal crime to be dismissed.

Can you lose HYTA status once it is granted by the court

A person that is given HYTA status remains on HYTA status until the end of a period of probation. There are always some rules and conditions that the court will impose for individuals that are given HYTA status. Violation of any rule or condition imposed by the court can result in losing HYTA status, abstracting the criminal conviction and imposition of further sentencing which could include jail. Getting charged with another crime while on HYTA status will always constitute a violation.  When a person is violated, the court will conduct a hearing to determine if a person will retain or lose his or her HYTA status.  In my opinion, most judges do not like to take away a person’s HYTA status and I would say that a judge will usually bend over backwards to allow a person to stay on HYTA. A HYTA violation  is a serious matter that requires a solid plan ahead of time that can make a difference in keeping or losing HYTA status. However, keeping HYTA status may have consequences such as serving some time in jail. Do not hesitate to consult with an attorney if you find yourself in this position.

Other Michigan provisions which are similar to HYTA

There are other laws which can be used in Michigan to get a criminal case dismisssed or under control which include: which can be resolved by laws which are similar to HYTA. They are as follows:

MCL 769.4a is used to get domestic violence offenses dismissed.

MCL 333.7411 is used to get drug crimes dismissed.

MCL 780.621 is Michigan’s “Clean Slate” or expungement law.

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An alien (non-US citizen) faces deportation for certain crimes such as retail fraud or domestic violence. Among other steps, getting the crime dismissed or amended to a non-deportable crime is the  key to avoiding deportation.

What does INS stand for?

INS  is the abbreviation that stands for the United States Immigration and Naturalization Services. The INS is responsible for handling immigration and naturalization issues. The immigration arm of INS is responsible for the process of a foreign person, alien to the United States, to become a permanent citizen. Becoming a citizen is a complex process. A person that is found guilty of certain crimes may not only be denied citizenship but also face deportation.

What types of crimes can result in deportation?

An individual that is not a United States citizen (alien) may face deportation if convicted of a crime that constitutes either of the following:

According to federal laws, 8 U.S. Code 1227, an alien may be deported for the following: 

  • Crimes of moral turpitude: Any alien who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.
  • Multiple criminal convictions: Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
  • Aggravated felony: Any alien who is convicted of an aggravated felony at any time after admission is deportable.
  • High speed flight: Any alien who is convicted of a violation of relating to high speed flight from an immigration checkpoint is deportable.
  • Failure to register as a sex offender is deportable.
  • Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.
  • Retail fraud (shoplifting).

Can an alien that is convicted of drunk driving or impaired driving be deported?

A conviction of an offense in Michigan for operating while intoxicated (OWI) or impaired driving (OWVI) is NOT a crime that involves moral turpitude and is not deportable.

Are there circumstances where a person can be deported upon being convicted of drunk driving or impaired driving?

A Michigan drunk driving, or a drunk driving in any other state, with aggravating factors may result in deportation. A felony drunk driving causing a death or serious personal injury are deportable crimes.

Retail Fraud is a deportable offense

A crime involving moral turpitude (CIMT) is defined as an act that is depraved, dishonest, or vile.  A misdemeanor or felony may constitute a CIMT. Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill. A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less that 1 year.  In Michigan, the crime of shoplifting is called retail fraud. Retail fraud is a deportable crime in because it is a CIMT that involves dishonesty.

There are ways for an alien that is charged with retail fraud, or other CIMT or aggravated felony, to avoid deportation. The key is to get the CIMT charge amended to one that is a non-deportable crime. There are other measures that need to be taken to avoid the scrutiny of deportation scrutiny. Once the charge is reduced, the original police report cannot be used on the court record as a factual basis to establish the amended outcome.

Criminal charges can have a huge impact on immigration status. Immigration status can be changed Do not hesitate to hire a criminal defense lawyer that understands how to represent aliens facing criminal charges that can . You absolutely need to hire the best criminal defense lawyer if you are not a United States Citizen and you are  charged with a felony or crime involving moral turpitude!

The prosecutor’s consent is required to get a plea bargain, or to get the charge reduced or amended to an offense that does not require deportation. The prosecutor may also need to obtain the consent of the victim. There may be other steps that we would recommend to insure a soft landing which may include: attending a counseling program paying restitution to the retail establishment and obtaining character letters. We have had extremely favorable results representing aliens charged with a CIMT,  such as retail fraud or larceny,  by getting the CIMT dismissed and amending it to a non-deportable charge such as “disturbing the peace” or disorderly conduct.

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Actual Image of Michigan Application to Set Aside/Expunge Conviction (MC227)

There are several reasons that you might need to know how to obtain your criminal record. You might need to obtain your criminal record to accurately fill out an application for employment or college. An attorney may want to do a background check if you are under a criminal investigation or being charged with a criminal matter. In addition, upon filing an expungement, an attorney is required to request the criminal history of the applicant.

How to order a copy of your criminal record


macomb-courts-logoMacomb County OWI Guide by Local OWI Attorneys

Macomb County: 2,000 Arrests Per Year for Driving Under the Influence

Whatever situation you are facing, we know that you didn’t intentionally set out to get charged with driving under the influence.  You’re in the right place if you are looking for answers and straight facts if are charged with an OWI anywhere in Macomb County. 

We have dedicated this  article to give you the big picture on the topic of operating a motor vehicle under the influence of alcohol or drugs (DUI/OWI) in Macomb County based upon our experience handling over 10,000 criminal cases with DUI/OWI cases consistently one of the most prevalent criminal charges that we handle for our clients.

The district courts located in Macomb County are as follows:

Frequently Asked Questions: Jail, CPL, Expungement, etc.

Based upon our experience, here are a few of the most common questions that we are asked by our clients that are charged with operating a motor vehicle under the influence of alcohol or drugs:

  • Am I going to jail? You are not looking at jail in any Macomb County County District Court if you are found guilty of a first time offense involving operating while under the influence (including OWI, High BAC or Impaired Driving).
  • Will I lose my driver’s license? For first time offenses that involve operating under the influence, there may a brief period of suspension with no driving privileges upon being found guilty. For example, an individual convicted of OWI with a high BAC will be suspended (no driving) for the first 45 days followed by restrictions (for employment and other purposes) with a BAIID device  for 320 days. We explain license sanctions in more detail in this article.
  • When should I hire a lawyer? It might take a month or longer before you get your first court date. However, you don’t need to wait until you get a court date before hiring a lawyer. You should consider hiring a lawyer as soon as possible if you are charged with any crime or drunk driving. There are proactive measures and strategies that can be taken right away if you are facing a criminal offense or drunk driving.
  • Can a drunk driving ever get dismissed? The answer to this question is YES. It is difficult to get a drunk driving dismissed but entirely possible based upon numerous legal and non-legal variables and circumstances. Even when a case cannot be dismissed, there is a good chance that it will be reduced to a lower charge. Getting a local attorney that specializes in drunk driving is your best option if you are looking to get the best possible representation.
  • Can I get an old drunk driving expunged? YES. Effective February 19, 2022, as part of Michigan’s Clean Slate laws, an individual may get one and only one drunk driving expunged if he or she meets the eligibility requirements and has resolved any underlying alcohol or substance abuse problem. The DUI expungement law will allow for expungement of any 1 of the following offenses:
    • Operating While Intoxicated
    • Operating Under the Influence of Drugs
    • Operating While Impaired
    • Operating with a High BAC .17 or greater
    • Zero tolerance/minor with any BAC
  • What is a BAIID device? A Breath Alcohol Ignition Interlock Device, or BAIID, is a device installed in a vehicle that captures the image of the drive and measures the driver’s blood alcohol content (BAC). The BAIID notifies the driver to provide breath samples when starting the car and at intervals while driving. The information is recorded and downloaded by the BAIID installer. BAIID violations can result in reinstatement of license suspension or revocation. A BAIID device allows an individual, whose license is otherwise legally suspended or revoked, to drive a vehicle. The BAIID is required for individuals that have been convicted of OWI with a high BAC, Sobriety Court participants convicted of two drunk driving offenses within 7 years and individuals with multiple drinking/drugged driving convictions that been granted driving privileges by the Secretary of State after a license restoration hearing.
  • Will I lose my CPL if I am convicted of an OWI or Impaired Driving? Unfortunately, you will lose your Concealed Pistol License (CPL) rights if you are convicted OWI or Impaired Driving. The right to have a CPL is gone for 3 years after a first time offense for operating under the influence. An individual convicted for a second offense will lose his or her CPL rights for 8 years.
  • Can I travel across the border into Canada if I am convicted of OWI or Impaired Driving?  Based upon Canadian immigration laws, a person that has been convicted of OWI or Impaired Driving will be considered criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.

Michigan State Police Maintain Annual Drunk Driving Statistics

There are approximately 2,000 or more arrests per year for driving under the influence in Macomb County. The Michigan State Police (MSP Drunk Driving Audit) keeps statistics on the number of individuals tested for alcohol and drugs, the test result scores and the outcome of each case in the court system. For 2019 (2020 results are not being used because  irregularities due to Covid-19 stay-at-home measures), the Michigan State Police report indicates the following number of people were tested for alcohol or drugs by a breath or blood test in Macomb and surrounding counties:

  • Wayne: 4,631
  • Oakland: 4,126
  • Macomb: 2,130
  • St. Clair: 468

The MSP Drunk Driving Audit gives the numbers of those tested by each police department as well. In 2019, some of the larger police departments in Macomb County and neighboring Oakland County reported a large number amount of individuals tested for alcohol and drugs:

Macomb County: Number of individuals tested for alcohol/drugs

  • Clinton Township Police: 164
  • Chesterfield Township Police: 153
  • Sterling Heights Police: 140
  • Shelby Township Police: 137

Oakland County: Number of individuals tested for alcohol/drugs

  • Troy Police: 280
  • Royal Oak Police : 215
  • Rochester Police : 120

(Above numbers do not account for other individuals tested by Macomb Sheriff, Oakland Sheriff & MSP within the above cities.)

Of those tested, most wound up facing a criminal charge for operating a motor vehicle under the influence of alcohol or drugs.  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.

What do the all of the abbreviations (OWI, DUI, etc.) stand for?

The following are common abbreviations used by the legal system in reference to the various charges for operating while intoxicated or impaired:

  • 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 drive with this paper license?

dui 257g

Yes, you can drive fully on the paper license issued by the police when you were released from jail.

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 driver’s license of the accused party and issue a Michigan Temporary Driving Permit (see above image).  The temporary permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, search warrant for blood if there was a refusal, 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. Upon being found guilty or convicted of operating while intoxicated or impaired, the Secretary of State will take appropriate action against the party’s license (suspend, revoke, restrict). 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

Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, an individual can be considered legally intoxicated even though the individual is not actually intoxicated. This is possible because Michigan has set legal BAC limits for individuals that operate a vehicle after consuming alcoholic beverages:

  • Operating While Intoxicated (OWI): A person that operates a motor vehicle with BAC of .08% to .16% is considered legally intoxication, regardless of actual intoxication. A BAC of .08% is sufficient to support a charge of Operating While Intoxicated (OWI).
  • Super Drunk Driving or OWI with High BAC: A person that operates a motor vehicle with BAC of .17% or greater, regardless of actual intoxication, faces a higher charge of OWI with a High BAC.

DUI BAC CHART MALE & FEMALE

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.

Defending OWI Offenders in Macomb County

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! 

Getting charged with an OWI can be a dreadful ordeal. Being arrested and spending the night in jail is something that most of our clients have never experienced and that they 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 2 main variables that can influence drunk driving charges:

  1. Blood alcohol content (BAC):  Having a BAC of .08 or more meets the threshold for the charge of OWI. However, if the offender has a BAC of .17 or more, the charge is increased to “Super Drunk Driving“.
  2.  Prior drunk driving convictions: A person with one or more prior drunk driving convictions faces enhanced penalties for future drunk driving convictions. A second offense for drunk driving within 7 years of a first offense carries up to 1 year in jail and revocation of driving privileges. Getting a third drunk driving in one’s lifetime is a felony that can carry five (5) years in prison.

Working with a local attorney who knows how to deal with the following inquiries is your best bet to get an OWI dismissed or reduced:

  • What was the reason for the traffic stop?
  • Did the police have evidence that you operated the vehicle?
  • Was there an accident? Single vehicle or with another vehicle or pedestrian?
  • Was anyone injured?
  • Was the vehicle in a safe place (parked, engine off)?
  • What the vehicle likely to be put in a position of danger?
  • What did you consume (alcohol, prescription meds, illegal drugs)?
  • Did others that saw you earlier feel that you were impaired or high?
  • Is the test result accurate or is an independent test necessary?
  • Was the testing equipment inspected? Calibrated?
  • Does our client have any prior offenses for driving under the influence?
  • Does our client have any other criminal record?
  • Was client cooperative with the police?
  • Should our client get an independent substance abuse evaluation?
  • Should our client begin counseling and/or AA?

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 most Macomb County Courts.
  • 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. There may be more than one pretrial conference. A pretrial conference is used to discuss plea bargaining, trial, discovery and other matters that pertain to the underlying case.  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 person charged with a crime is not required to accept a plea bargain.
  • 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.
  • 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?  

Marijuana is now legal in Michigan for recreational and medical use. However, a person that drives under the influence of marijuana is exposed to the same fate as someone that drives after consuming alcohol.

Alcohol can be tested by obtaining a breath sample with equipment known as a breathalyzer instrument. Marijuana is discovered by a blood test. In Michigan, drinking and driving charges are based upon legally established measurements of blood alcohol content (BAC) as measured by the testing equipment. The legal limits (BAC) for drunk driving in Michigan per se cases are as follows: Content results

  • OWI = BAC .08 or greater
  • Super OWI = BAC .17 or greater

No such legal limits for THC exist at this time and there is no approved testing instrument for marijuana that compares to the breathalyzer.  Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

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 will happen with my drunk/drugged case in Maacomb County?

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 to a lower charge) or negotiating a plea bargain to a better place. According to US Justice Department Statistics, approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. The same is true for criminal and drunk driving cases in Michigan and in the Macomb County .  Plea bargaining can result in a dismissal, a reduction in the charges as well as recommendations for leniency at the sentencing phase of the case. Here are some common scenarios for drunk driving/drugged driving cases in Macomb County:

FIRST OFFENSE: 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. Contact a local Macomb County OWI lawyer to find out how a “Super OWI” can be dropped down to a much lower offense that will NOT REQUIRE the BAIID.

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.  Sobriety Court is a good fit for someone that needs an intensive alcohol rehabilitation program and also for those convicted of a second offense for operating under the influence within a 7 year year period.

THIRD LIFETIME OFFENSE, Felony Drunk Driving: 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.

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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stealing-from-walmart-self-checkout

Retail fraud can occur by concealing property,

by engaging in certain fraudulent activity or bypassing a checkout scanner.  

41A District Courts: Locations in Sterling Heights and Shelby Township

Criminal cases which occur in Sterling Heights, Shelby Township, Macomb Township and Utica are handled at one of the above 41A District Courts. The Shelby Township location has jurisdiction over cases that occur in Shelby Township, Macomb Township and Utica.  41A District covers a large geographical area in the County of Macomb with two court locations: 

There are numerous retail establishments and shopping corridors situated within the jurisdiction of the 41A District Courts.  In addition to Lakeside Mall, there are numerous other national retailers and big box stores located on the M-59 corridor and on major shopping corners and centers throughout Sterling Heights, Shelby Township, Utica and Macomb Township including Sam’s, Meijer, Walmart, Kmart, CVS, Home Depot, Lowes Home Improvement, Target and Kohls.

The courts, police and prosecutor will not give you legal advice!

This publication is based upon our law firm’s extensive experience practicing criminal law in the 41A District Courts. Do not hesitate to hire a lawyer to protect your rights if you are being accused or charged with a crime. The courts, police and prosecutor will not give you legal advice.

Retail Fraud is Shoplifting: Possible arrest on the spot or released and notified of a court date

The crime of shoplifting, which is called retail fraud in Michigan, is one of the most prevalent crimes that we see in both of the 41A District Courts as well as every other district court in Macomb County!

Retailers use a variety of resources to deter theft and identity shoplifters. The offense of shoplifting, or retail fraud, occurs when a person does any one of the following acts with an intention to steal property from a retail establishment:

  • Conceals property on his or her person, or otherwise, with the intent to steal.
  • Changes a price tag or label with the intent to create or cause a misleading transaction.
  • Attempts to defeat the self scanning checkout system.

After identifying a shoplifter, the loss prevention employee will obtain identification and detain the suspected party unless apprehension and detention is dangerous or met with resistance. Insofar as possible, loss prevention employees are trained to avoid confrontations which could result in personal injuries or liability to the retailer.  The shoplifter may be held in custody until a bond is posted or released and  notified of a court date in about 30 days.

Once apprehended for retail fraud, one of the following scenarios may occur:

  • The police are called to the scene and the person may be arrested, booked and released on bond until a court date is scheduled.
  • The person may be released and notified by mail once the case is within the court system.
  • The person may be issued a ticket or notice to appear in court within 10 days or on specified date.

Video Evidence of Self Scanner Fraud: Getting caught red handed is one way that shoplifters get nabbed.  Reviewing video footage of a particular customer’s shopping activity is another way that retail fraud offenders are flushed out.  If a customer is suspected of retail fraud, particularly at a self checkout scanner, a loss prevention officer may track the customer’s credit card transactions and match them up with the video of the person’s checkout activity. If the customer is seen placing items in a bag, or bypassing the checkout scanner, without paying for the items, the customer may be charged with retail fraud. The following are a few ways people steal at self checkout terminals:

  • Failing to scan items, usually of greater value (leaving them in a shopping cart).
  • Placing an item in a bag or in the bagging area without scanning it.
  • Creating confusing to distract store employees.

Multiple charges may be levied against a single customer if the video evidence reveals several illegal transactions. The transactions may be combined to charge an individual with multiple crimes or the separate transactions may be consolidated to elevate the crime to a felony if the amount involved is $1,000.00 or more.

The evidence in a retail fraud case will consist of the police report, any witness statements, confession of the accused party and any photographic or video evidence of the incident. Employees and loss prevention officers of the retail establishment will be asked to cooperate with the prosecutor and the court system in later proceedings against the accused party.

Penalties for Retail Fraud: Criminal Record, Possible Deportation

Retail fraud in the first degree is a felony. Retail fraud in the second and third degree are misdemeanors. Retail fraud is a crime of dishonesty which could result in a permanent criminal record if not handled by an experienced retail fraud lawyer. Retail fraud is also considered a crime involving moral turpitude which can result in deportation for non US citizens. Thus, a person who faces retail fraud charges should hire a lawyer as soon as possible. A lawyer can provide invaluable sound legal advice and a strategy which could keep result in a dismissal of the offense, depending upon the circumstances and the prior criminal record of the offender.  The penalties for retail fraud are:

  • Retail Fraud First Degree: If the value of the merchandise is $1,000.00 or more, up to 5 years in prison and/or fine up to $10,000.00, or 3 times the value of merchandise.
  • Retail Fraud Second Degree: If the value of the merchandise is $200 but under $1,000.00, up to 1 years in jail and/or fine up to $2,000.00, or 3 times the value of merchandise.
  • Retail Fraud Third Degree: If the value of the merchandise is under $200,up to 93 days in jail and/or fine up to $500.00, or 3 times the value of merchandise.

Michigan Law provides that a person who commits an act for which he or she could be charged with retail fraud is liable to the merchant for the full retail price of un-recovered property or recovered property that is not in salable condition, and civil damages of 10 times the retail price of the property, but not less than $50.00 and not more than $200.00.

In addition, the court can order restitution at the time of sentencing. Restitution is compensation for a victim’s losses.

Retail Fraud Cases DISMISSED!

You are not alone if you facing a shoplifting charge. Some of our clients say that they are happy when they got caught because it (shoplifting) was getting out of control. Others do not have a history of shoplifting but committed the offense on an impulse or desperation. Having a lawyer by your side is your best bet to insure that your rights are protected and to avoid saying the wrong thing that can hurt your case in the legal system. Don’t convince yourself that you can outsmart the legal system.  First of all, based upon our experience handling retail fraud cases in the 41A District Courts, 100% of of first time retail fraud offenders are eligible for

If you are charged with a first offense for retail fraud, a disposition for a dismissal is a realistic goal. Based upon our experience, more than 95% of all retail fraud cases are resolved without a trial. There are several provisions of law which we can use to get a retail fraud case case dismissed including: 

  • HYTA allows youthful offenders to get a dismissal and the record sealed from public view.
  • Juveniles, age 17 or under, may be eligible for consent calendar to get a criminal charge dismissed, sealed and with no record created.
  • Adult offenders may be eligible to get a retail fraud deferred and dismissed under a special provision of law.
  • For aliens (non US citizens), our goal is to get the charge amended to a non-deportable offense.

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