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Three Lifetime Drunk Driving Charged as a Felony in Michigan!

Since the passage of Heidi’s Law in Michigan in 2007, a person is subject to felony prosecution for three (3) or more lifetime convictions for any combination of:

  • OWI/operating while intoxicated-alcohol with a BAC of .08 or greater,
  • OUID/operating under the influence of drugs/prescription medications,
  • OWPD/operating with the presence of Schedule 1 controlled substance,
  • Super drunk driving/operating with a high BAC of .17 or greater,
  • OWVI/operating while impaired driving,
  • Zero Tolerance/under 21 with any BAC (0nly 1 such conviction may be counted towards a felony).

Driving under the influence convictions which occur in states outside of Michigan are also counted.   This law has been on the books for several years and all states have adopted this law. However, prior to the passage of this Heidi’s Law, a person could only be charged with felony drunk driving if the prior convictions occurred within 10 years of the new arrest.  This blog will explore legal defense strategies, possible penalties and other ramifications associated with a felony DUI offense. For additional information: What you need to know now if you are charged with drunk driving anywhere in Macomb County.

It is a felony if you get convicted for a third drinking and driving offense in Michigan.  A person convicted of a felony will lose coveted rights such as the right to possess a firearm. There is a social stigma for individuals convicted of a felony and other consequences associated with a felony record.  Hiring a local lawyer with years of experience  handling felony matters if you find yourself facing a DRUNK DRIVING THIRD or any other felony charge. Felony lawyers will look at every possible angle to get the charge dismissed or reduced to lower offense.  Felony lawyers also know what to expect from the local judges and prosecutors in the jurisdiction where they practice.  For example, we know from experience that there is the possibility of reducing a felony charge in Macomb County (including felony drunk driving) to a misdemeanor under certain circumstances and with the Macomb County Prosecutor’s approval.

Penalties for Felony Drunk Driving Conviction

The list of possible penalties for a third driving and driving conviction in Michigan are as follows:

  • Fines: $500.00 to $5,000.00 fine, plus costs.
  • Jail/Community Service: Imprisonment for 1 to 5 years, or, probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively.
  • License Sanctions: License revoked minimum of 1 year for any felony driving offense. A second revocation is for 5 years. After minimum period of revocation, a person must appear before the Driver License Appeal Division satisfy several requirements before a license will be granted.
  • Other: Destruction of License, Plate confiscation, Vehicle immobilization from 1 to 3 years, Possible vehicle forfeiture .
  • Points: 6

Proving Drunk Driving: Actual intoxication is irrelevant when test results are .08% or greater

The elements of a drunk driving which the prosecutor must prove are:

Intoxication or Impairment by alcohol, drugs or marijuana: In Michigan “Operating While Intoxicated” (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs (OUID) to a degree that renders one unable to safely drive a vehicle. In Michigan, OWI convictions can be obtained regardless of actual intoxication if a person has a BAC of .08% or greater or tests positive for the presence of certain Schedule 1 drugs. Pursuant to MCL 257.625, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

Proof of operation of vehicle:  The police do not have to witness the offender actually driving or operating the vehicle. In the cases researched, you can be charged and convicted with OWI if the police had probable cause to believe the accused was operating the vehicle at some point in time. In other words, evidence of recent operation will suffice in cases where there is an accident or when a vehicle in a ditch or off the road).

Legal traffic stop:  A traffic stop may be based upon any violation of any Michigan traffic laws. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment and coming in close contact with objects or other vehicles. The police may also approach a person that is found fixing a flat tire on the shoulder of a road although nothing illegal is occurring! Cellular phone calls to the police may also be used to give law enforcement officers with notice of a drunk driver’s whereabouts. The caller may be eventually be called as a witness.

Planning a defense strategy for felony drinking and driving

Our goals  in every criminal case, including drunk driving, are always the same: avoiding of a conviction and avoiding jail!  While avoiding a conviction or jail 100% of the time is not realistic even for experienced criminal defense lawyers, steps can be taken to get a case under control, reduce charges and obtain the lowest possible sentence.

Police Report: The police report can be obtained soon after we are retained for a criminal matter. By law, the prosecutor is required to provide full disclosure (known as discovery) of the report, videos and test results (see blog regarding alcohol/drug testing). Refuting the accuracy of tests, intoxication and grounds for the traffic stop are ways in which a drunk driving charge may be challenged. An aggressive drunk driving defense may also include:

  • Interviewing any possible witnesses (passengers, last persons who could testify as to client’s sobriety)
  • Obtaining an expert witness to challenge blood or alcohol test results (especially in close cases or cases involving prescription meds or THC levels)
  • Recreating the scene of the traffic stop

Client Background: Obtaining a complete personal history of our client is essential in the preparation of a sound legal defense. In our experience, the positive background of a person can make a vast impression on the prosecutor, the probation department and the assigned judge during various phases of a criminal case.

  • Education, degrees, special skills
  • Employment, years at employment, position, awards
  • Family situation, child support obligations
  • Military duty, tours of service, decorations, honorable discharge
  • Charitable service, community involvement
  • Other awards, achievements, recognition
  • Past and present physical health, mental health, psychological attention, medications
  • Past and present substance abuse/alcohol treatment, in-patient care, attendance of AA, relapse prevention programs

Criminal History: In addition to the personal history, the lifetime criminal conviction history also plays a vital role in the criminal process of a drunk driving offense.  We can usually minimize the value of extremely old criminal offenses.

  • Misdemeanors (including traffic related misdemeanors)
  • Felonies
  • Juvenile record
  • Drinking and drug convictions (disorderly conduct, domestic violence, MIP, possession of marijuana, etc)

Habitual Felony Offenders: For felony convictions, Michigan judges are required to follow the Michigan Sentencing Guidelines. The guidelines factor in prior convictions and felonies for purpose of scoring a sentence range. Prior felonies will be used to label an offender as a habitual offender. A person with 1 prior felony is considered a “habitual offender 1” or Hab-1st. Habitual offender status can go as high as Hab-4.  The maximum penalty for a person with Hab-4th  status (meaning the person has 3 prior felonies not counting the charged felony) is up to life in prison.

Other Relevant Factors:  The following factors may influence the outcome or sentence of a felony drunk driving:

  • Is the person charged with  a *true 3rd DUI offense (meaning the offender has only 2 prior DUI lifetime convictions)?
  • Are any of the prior drinking & driving offenses more than 10 years old?
  • Does the offender have a felony record?
  • Does the pending offense involve an injury accident?
  • Is the blood alcohol content (BAC) in a close range to .08% or is it extremely high (over .17%)?
  • Has the offender engaged a substance abuse counselor and/or AA?
  • Is the offender on probation for any other criminal matter?

*In Macomb County, our firm has advocated plea bargains to a misdemeanor if the offender is charged as a true third drunk driving offender. We have achieved this result in numerous cases; including offenders with more than two (2) prior lifetime DUI offenses. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.

Possible outcomes of a drunk driving felony

Everyone likes to believe that they will win their drunk driving case at trial. This is not realistic since the vast majority of drunk driving offenses (as well as all other criminal offenses) in Michigan are resolved based upon a plea bargain.  In fact, recent statistics indicate that over 90% of all criminal cases are resolved by a plea bargain and not by trial.

Rarely is a client willing to roll the dice at trial when we can secure a deal to have a drunk driving felony reduced to a misdemeanor with a dismissal of the felony charge. However, our attorneys will examine a case from every angle to determine the best course of action which may include:

  • Scheduling the case for a jury trial
  • Fling and arguing motions to dismiss because of an illegal traffic stop
  • Filing and arguing improper testing procedures or equipment failures
  • Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
  • Negotiating the minimum sentence (30 days with community service) to avoid prison
  • Sobriety Court

Michigan State Police Annual Drunk Driving Audit

The Michigan State Police maintains an annual audit of drunk driving cases based upon data from the courts and police in Michigan which provides detailed information concerning traffic fatalities and injuries, as well as drunk driving arrest activities in the state. The most recent Michigan Drunk Driving Audit covers 2022 which was completed in July, 2023. Therefore, don’t expect the 2023 audit until around July, 2024. Here are some of the details obtained from the 2022 Annual Drunk Driving Audit:

Macomb County, Number of breath and/or blood tests for alcohol: 1,890

Oakland County, Number of breath and/or blood tests for alcohol: 3,619

Wayne County, Number of breath and/or blood tests for alcohol: 3,735

St. Clair County, Number of breath and/or blood tests for alcohol: 458

Washtenaw County, Number of breath and/or blood tests for alcohol: 840

There are thousands of drunk driving arrests in the Metro Detroit and surrounding regions as illustrated by the above information. Some of these individuals may be facing any one of the following drinking and driving offenses:

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shoplifter

In a recent Wall Street Journal Article Judge Thomas Boyd, who handles misdemeanor cases in Ingham County, Michigan, said

“he sometimes finds himself arguing with defendants who seem too eager to admit wrongdoing without consulting a lawyer.” 

The crime of shoplifting is covered under the umbrella of the Michigan Retail Fraud statutes. Retail fraud is a serious crime. A person convicted of retail fraud is labeled as a “dishonest” person or a “thief”. We believe that these characterizations are unjust and can unfairly damage a person’s reputation, lead to deportation and can. jeopardize employment and/or education  opportunities . Being charged with a any crime can be a life changing event. Don’t take the path of pleading guilty without the benefit of a lawyer. A skilled local criminal defense lawyer will get your life back on the right track, restore your reputation and keep your record clean in the process.

Cases dismissed even if you did the crime!

Being guilty does not mean that you will be found guilty. The court system can be forgiving, especially if you have are a first offender.  In this publication, we discuss how a retail fraud offense can be dismissed for eligible offenders in every Macomb County District Court:

In addition, we warn you that an opportunity to get a dismissal can be lost by saying the wrong thing on your court date to the prosecutor or to the judge. You also need to understand that the employees of the court are forbidden by law to give you legal advice! Getting a local criminal defense lawyer is always your best course of action to GET YOU OUT OF THE COURT SYSTEM.  If you are charged with retail fraud, there are many ways that an experienced Macomb County criminal defense attorney can negotiate to get you out of the court system by accomplishing these goals:

  • Avoid a conviction.
  • Avoid deportation.
  • Avoid jail.
  • Avoid a criminal record.

Retail Fraud: Major Shopping Corridors

Retail fraud cases are on the rise and are always one of the most frequently charged misdemeanor offenses and felony offenses in the Macomb County District Courts where we practice extensively.  While every court in Macomb and Oakland County sees its fair share of shoplifting cases, the courts which are located in regions with shopping malls (Troy, Roseville, Sterling Heights), major retailers (Target, Kohl’s, Walmart, Home Depot, Meijer) and major shopping corridors have the greatest number of retail fraud cases on their dockets for obvious reasons. While each offender has a different reason for committing the offense of retail fraud, some of the common variables that we are seeing in Macomb County misdemeanor retail fraud cases (amount involved is under $1,000) are as follows:

  • Isolated Incident: Our typical client charged with retail fraud does not have any prior criminal record, with the exception of possible prior minor infractions or misdemeanors.
  • Shoplifters target easily concealable merchandise, such as cosmetics, food items, lingerie, jewelry.
  • Shoplifting often occurs at the self checkout by attempting to defeat the scanner or by scanning an item or barcode that is a lower price.
  • Many individuals accused of retail fraud have made legitimate purchases at the retail establishment and have financial means to pay for the item(s) improperly taken.
  • The value of the property taken is under $1,000.00.

Retail Fraud: Concealment, Scanners, Changing Price Tags

Retail fraud occurs in many different ways. It can be accomplished by taking property and attempting to conceal it, by changing a price tag  or putting item in a container that is offered for sale for a lesser amount. Retail fraud also occurs frequently at the point of checkout at a self-scanner or when someone tries to defeat the bar code scanning equipment by spurious means.

Retail Fraud Over $1,000 = Felony, Under $1,000 = Misdemeanor

Retail fraud crimes can be charged as a felony or misdemeanor and are classified by the value of the property taken or whether the offender has a prior record. A prior record for larceny, false pretenses or a prior retail fraud may result in enhanced penalties.

  • 1st Degree Retail Fraud, Felony: Maximum Penalty: Up to 5 years in prison, $10,000.00 fine, court costs. Value of Property or Money: $1,000.00 or more
  • 2nd Degree Retail Fraud: Misdemeanor: Maximum Penalty: 1 year jail, $2,000.00 fine, court costs. Value of Property or Money: $200.00 but less than $1,000.00
  • 3rd Degree Retail Fraud: Misdemeanor: Maximum Penalty: 93 days jail, $500.00 fine, court costs.  Value of Property or Money: Under $200.00

Triple Penalty: In addition to the above penalties, the court has the option to  impose a fine, or a penalty up to 3x the amount of property or money attempted to be misappropriated, whichever is greater.

Civil Demand Letter: The retail business may send a letter requesting up to $200.00 from the alleged offender even before the case is within the court system. The criminal retail fraud matter will not be dropped just because this amount is paid. The civil demand for money and the criminal proceedings are separate and distinct matters.

Impulsive Behavior, First Offender?

Approximately 20,000 larceny related crimes are reported each year in Michigan. Larceny related crimes include retail fraud. Shoplifting is not limited to those that are underprivileged. In general, our clients have never been in trouble, have financial resources and their conduct can be described as an isolated incident. In other cases, we have also represented those that are impoverished or suffer from a compulsive shoplifting disorder. It is our job to work with our clients to understand why our client is charged with a crime so that we can provide effective legal representation and solutions.

  • Impulsive behavior: Impulsive conduct, or acting before you think, is also high on the list of reasons that a person engages in the offense of retail fraud.  Impulsive behavior is not limited to juveniles or youthful offenders. Our Macomb County criminal defense lawyers have represented individuals in every age group and every walk-of life including senior citizens and mini-van-moms who site impulsiveness as a reason for committing an act of retail fraud. We label many retail fraud cases as an “isolated incident” which means that it is not likely to ever occur again. Most impulsive or first time offenders are not likely to become a client again for retail fraud and most courts go give leniency for first time offenders engaged in a one time “isolated incident”.
  • Psychological issues, adjustments to medications: Pre-existing psychological conditions including, PTSD, depression, ADHD, along with adjustments to prescription medications, can sometimes be the cause of erratic or irrational conduct that leads to a person to engage in risky behavior.  The court system is sensitive to those that are dealing with a psychological disorder or maybe recent stressful situation that causes inappropriate conduct. In these cases, we may recommend that our client begin a counseling program, attend a retail fraud prevention class or take some other proactive course of action.  We will obtain as much background information as possible from our clients and make recommendations that can often make a vast difference in the outcome of a case once it is in the court system.

I have been arrested for retail fraud. What do I do next?

Being arrested for any crime can be a devastating experience. If you are caught shoplifting and are looking at being charged with retail fraud, you will either be arrested or given a citation with instructions to contact the court. If you find yourself in this position, hiring a local criminal defense lawyer is your best course of action to navigate your case and get you out of the system smoothly and expeditiously.

Macomb County Misdemeanor Case Procedure

Arraignment: An arraignment is where the court will read the charge(s), advise the accuse of his or her right to an attorney, set bond and schedule the next court date.

  • Discovery: The next stage of the case is called discovery which means both sides have the right to gather all of the evidence.
  • Motions: Motions may need to be filed when the court’s is needed to address pre-trial issues.
  • Pretrial Conference: The pretrial conference is an important stage in a criminal case which typically results in a resolution of a case without heading to trial.
  • Trial: A person accused of a crime is entitled to a trial before a jury.
  • Burden of Proof: The prosecutor must prove its case beyond a reasonable doubt or the jury is required to return a verdict of not guilty.
  • Pre-sentence Report: If a person is found guilty of a misdemeanor, the court may require the individual to interviewed by the probation department.
  • Sentence: The sentence stage of a case is where the court can impose jail, probation, fines, court costs, restitution, counseling, alcohol and/or drug testing.

A lawyer should be obtained as soon as possible once a person is released from police custody. Remember, the police, prosecutor and court personnel do not give legal advice.

Getting a second chance in Macomb County Courts!

The outcome of a retail fraud case in the Macomb County Districts Courts will depend upon various factors including:

  • The prior criminal record of the offender.
  • Cooperation with authorities.
  • The value of the property stolen can make a minor retail fraud offense into a felony.
  • The proactive measures taken by the offender prior to the first court date.

Judge Thomas Boyd: “Defendants too eager to admit wrongdoing without consulting a lawyer.” 

While retail fraud cases do not usually involve jail, they can be devastating on a person’s permanent criminal record. A retail fraud offense can label an individual as a “thief” or “dishonest” person. At some point during the legal proceedings, the offender will be judicially interrogated. Saying the wrong thing to the prosecutor or the judge can result in permanent conviction.  The guidance of a criminal defense lawyer can make a huge difference in whether the offender gets stuck in the system or gets a second chance for a dismissal.  In the following Macomb County District Courts, a plea bargain with a disposition for a dismissal is feasible for first offenders charged with retail fraud 3rd degree in every Macomb County Court!

Deferrals, First Offender Programs:  When a client has never been convicted of a crime, we may be able to advocate for a plea bargain to obtain a first offender program  ask that the case be taken under advisement with a dismissal after a period of probation. Probation is rarely more than 1 year but can be as short as 6 months.

Youthful Offenders: Individuals that qualify as youthful offenders (age 18 but under age 26), may qualify for disposition of a criminal case, including retail fraud, pursuant to the HYTA statute. An individual that is granted HYTA status will  benefit by getting the criminal charge(s) sealed and dismissed at the end of a period of probation.

Felony Retail Fraud: When someone is charged with felony retail fraud in the first degree, our goal may be to avoid jail and a felony conviction.

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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 is the administrative body of the Secretary of State that conduct driver license restoration hearings. The hearing officers are licensed attorneys that are employed by the State of Michigan. In comparison to Michigan District Court or Circuit Court Judges, The hearing officers are not elected or appointed for a designated term.

Following the COVID pandemic, OHAO hearings are conducted remotely. Presently, the OHAO utilizes the Microsoft Teams video conferencing application to conduct hearings. Click here for a directory of the OHAO hearing officers and the link to the OHAO MS Teams portal.

  • WINNING OHAO HEARING: If you win your OHAO hearing, you will be allowed to operate a vehicle on a restricted basis with a Breath Alcohol Ignition Interlock Device (BAIID). After you have had the device on your vehicle for a minimum of one (1) year, you can file a request for a second hearing FOR REMOVAL OF THE BAIID AND FOR  FULL RESTORATION of your driver’s license.
  • LOSING OHAO HEARING: If you lose your OHAO hearing, you are not eligible for another OHAO hearing for a period of one (1) year.

HOW WILL YOU ANSWER THESE QUESTIONS??

A hearing is subject to the rules of evidence and is conducted by the petitioner’s driver license restoration attorney and the hearing officer. Hearings last approximately 30 to 45 minutes. Here is a partial list of questions that may be covered at an OHAO hearing:

  • Are you an alcoholic?
  • Have you ever used drugs?
  • Do you have a medical marijuana card?
  • Do you think it would ok to partake in a toast at a wedding with an alcoholic beverage?
  • Do you continue to attend Alcoholics Anonymous or a counseling program?
  • Why didn’t you stop drinking after your first drinking and driving offense?
  • Do you see yourself drinking at any time in the future?
  • Did you drink on a daily basis? Weekly basis? Monthly basis?
  • What kind of alcohol did you consume (beer, hard liquor, wine)?
  • How much would you consume per sitting?
  • Do you keep any alcoholic beverages in your residence?
  • Does anyone in your household consume alcoholic beverages?
  • Do you ever go to bars or places where alcohol is served?
  • Do you know the serenity prayer?
  • Do you know the 12 AA steps?
  • What is your relapse history?
  • What is the longest period of maintaining sobriety?
  • Are you on probation?

Your answers to these questions, along with several more, can make or break you! If you need help with any of the questions, do not hesitate to hire an experience driver license restoration lawyer in Macomb County. An experienced Michigan license restoration lawyer will work with you to win your case. This means that your lawyer make sure that all of your documentation is consistent and effective before it is submitted to the Secretary of State and will prepare you to answer the questions that are likely to be raised at your hearing.

When can a person’s license be revoked

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.
  • 3-6 Character Letters: At least 3 letters are required that verify sobriety of the petitioner.
  • DI4P-Physician Statement: This form is required when a person has a medical condition, or uses certain medications, that may have an impact on the person’s ability to operate a vehicle.
  • 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 waited several years for a hearing, went to jail or need a license to work does not mean that you will win your hearing. You must present consistent credible evidence for your licensee restoration hearing. With certain hearing officers, your evidence muse be almost perfect or you can risk losing your hearing! Unfortunately, the standards set forth regarding the evidence are not entirely objective and are not always applied fairly.

Losing is not an option!

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:

  • Probation has not been terminated.
  • A longer period of sobriety is necessary.
  • Character letters or other documentation are incomplete.
  • Inconsistent evidence and sobriety dates.
  • Failure to mention all prior criminal offenses.
  • Failure to know the AA steps if you are attending AA meetings.
  • Failure to obtain a doctor’s letter if you are taking certain medications for sleep, pain or psychological reasons.

By being well prepared by an experienced driver license appeal attorney, you are more likely to win your hearing. Unfortunately, if you lose your hearing, you are not eligible to file a request for another hearing for a period of one (1) year.  THIS IS WHY WE SAY “LOSING IS NOT AN OPTION!”

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) and BAIID Violations

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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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,
  • HYTA may be used for an unlimited number of eligible criminal offenses,
  • HYTA is NEVER AUTOMATIC and it must be accepted by the Court and approved by the prosecutor under certain circumstances, 
  • The offense(s) taken under HYTA are not required to be disclosed on applications, 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. In addition, under most circumstances, a conviction under HYTA status is not required to be disclosed on an application for employment or education.. HYTA status can be taken away if an individual violates the terms and conditions ordered by the court. Getting charged with another crime while on HYTA status is a clear violation that could result in LOSING HYTA status, inthe discretion of the Judge.

HYTA is not available for juveniles (under age 18) or for offenders that are age 26 or older. However, there are other provisions of law that can benefit juveniles and adult offenders over age 25.

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 winding up with a conviction or getting a criminal case dismissed. 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.

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 a local Macomb County criminal defense 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 crimes (DWLS, Fail to Stop at the Scene of an Accident),
  • Drunk driving, Super Drunk Driving,
  • Major controlled substance offenses,
  • Major criminal sexual conduct offenses,
  • A felony for which the maximum penalty is imprisonment for life.

Talk to an experienced criminal defense lawyer that knows the local courts and ways to get you out of the system with the best possible outcome.

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:

HYTA is not available in the federal court system. However, the federal court system does have programs, such as diversion or pardon, that allows for a federal crime to be dismissed.

Traffic Offenses and Drunk Drunk are Not Eligible for HYTA

Although traffic offenses and Drunk Driving offenses are not eligible for HYTA, we are often able to get them amended to avoid any traffic points and also avoid a criminal conviction.

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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 “Assault with a Dangerous Weapon” – Up to 4 Years in prison

Defending Domestic Violence, Assault with a Dangerous Weapon, Assault by Strangulation in Macomb County

As you read through this, it is important for you to know that ALL criminal charges are pursued by “THE GOVERNMENT”. It is the ALWAYS “the state” that prosecutes individuals for violating laws within the state’s jurisdiction. The state does so by utilizing state prosecutors (attorney general), county prosecutors and municipal prosecutors to enforce the laws which are in place to protect property and people in our state under the theory that individuals do not have the resources to go after those that commit crimes to the extent that the government does. The state uses it law enforcement agencies to investigate crimes and manage the movement of prisoners to courts. The court has vast powers to set bond, impose no-contact orders and order witnesses to appear in court through its subpoena powers. For this reason and other public policy reasons, it is difficult for a victim to get a case dismissed that is “in the system”. Getting a sharp local criminal defense lawyer is your best course of action to get a case under control when a victim does not want to cooperate.

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Romeo: 42nd District Court Division 1

Above, is a map of Macomb County with a geographical breakdown of the 9 district court borders. The 42nd District Court-Division 1 is located in the City of Romeo. It is often referred to as the Romeo Court. The court has jurisdiction over a greater area of land than any other district court in Macomb County and serves the following northern Macomb County communities: Romeo, Washington Township, Armada Village, Armada Township, Richmond, Richmond Township, Memphis (south of Boardman Rd), Ray Township and Bruce Township.

New Baltimore: 42nd District Court Division 2

The 42ndDistrict Court Division 2 is located in the City of New Baltimore and it serves the communities of New Baltimore, Chesterfield Township, Village of New Haven and the Lenox Township.

Traffic and Criminal Caseload of the 42nd District Courts

The 42-1 District Court, which is the one located in Romeo, and the 42-2 District Court, located in New Balimore, have jurisdiction over civil disputes not exceeding $25,000.00, and the following other legal proceedings:

Arraignments: All misdemeanor and felony arraignments occur at the district court level. Arraignment is the first stage of a criminal case following authorization of a criminal charge.

Misdemeanors: The district courts have complete jurisdiction over misdemeanors. Misdemeanors are crimes punishable by up to one year in the county jail and/or fines up to $1,000.00.

Felonies: All felony cases begin in the district court for arraignment, probable cause conference and preliminary examination. Felony proceedings beyond preliminary examination are handled in the higher circuit unless resolved in the district court by a reduction to a misdemeanor.

Traffic: The district courts have complete jurisdiction over traffic tickets. Getting a lawyer to fight a traffic ticket to avoid points and higher insurance premiums is a wise investment.

Drunk driving, domestic violence and retail fraud are some of the most prevalent cases on the criminal dockets at the 42-1 District Court and the 42-2 District Court. Judge William Hackel presides over the 42-2 District and Judge Andary presides over the the 42-1 District Court.  Because of our consistently high criminal caseload at these courts, we consider both 42nd District Courts to be “home-town” courts. This ABDO LAW publication will focus on our experience representing clients charged with drunk driving, domestic violence and retail fraud cases at the 42nd District Courts.

Drunk Driving 

Getting nailed for drunk driving can be an ordeal no matter where it happens. However, it does make a big difference if you get a local Macomb County DUI/OWI lawyer that is experienced with the court and the judge assigned to your case.

Nationwide, less than 10% of all drunk driving cases wind up going to trial. This statistic holds true for drunk driving cases that are heard at the 42nd District Courts located in Romeo and New Baltinore, as well as every other district court in the counties of Macomb, Oakland, Wayne and St. Clair. However, I can tell you that if you get an OWI/DUI in the 42-1 District (Romeo Division) or the 42-2 District Court (New Baltimore Division), you are looking at the best-case-scenario. By best-case-scenario I mean that you are looking at getting the charge REDUCED, NO JAIL and NOT LOSING YOUR LICENSE. This is true for the drunk driving cases that we have handled for FIRST TIME OFFENDERS in the 42-1 and 42-2 District Courts from 2020-2021 where we were able to get every OWI and High BAC (.17 or more) dropped down to a lower charge with NO JAIL.  There are a few differences in the way things are done in the sister courts located in Romeo and New Baltimore. The Romeo Court is more likely to require supervised probation and alcohol testing for first offenders than New Baltimore. However, Romeo’s Judge Andary will consider early termination of probation and modification of random testing for individuals that are have been compliant.

The following are your most common options if you are charged with drunk driving

  1. Hire an attorney to negotiate the best possible plea bargain and advocate for a minimal sentence. Note: even felony drunk driving third offense can potentially be reduced to a misdemeanor!
  2. File motions to seek dismissal or reduction in the charge(s) based upon:  lack of evidence of intoxication or impairment, mistakes as to testing protocol, illegal traffic stop, lack of evidence to support the element that vehicle was “operated” by the defendant.
  3. Conducting a trial before the judge or a jury.

As I mentioned, more than 90% if OWI/DUI are resolved when an attorney can negotiate a favorable outcome that is far better than risking a guilty verdict to the higher original charges at trial. Because a local Romeo or New Baltimore drunk driving attorney knows the local polices, politics and procedures, you should never plead guilty as charged without getting sound legal advice. Watch your ass if you are getting your legal advice from the cop that arrested you and said that you don’t need a lawyer. You should also know that the court personnel are forbidden to give legal advice by every district court in Macomb County.

Link: extensive coverage of DUI/OWI cases in Macomb County.

Shoplifting-Retail Fraud

The terminology given by the Michigan Penal Code for the crime of shoplifting is “retail fraud.” Intentionally changing price tags, concealing merchandise and failing to scan merchandise are all forms of retail fraud. The offense of retail fraud may be charged as a misdemeanor or a felony. In Michigan, a misdemeanor is defined as an offense that is punishable by not more than 1 year in the county jail while a felony is a criminal offense punishable by more than 1 year – up to life in prison. The dollar amount of underlying theft and/or the prior retail fraud criminal record of the offender are the determining factors as to whether a person is charged with a misdemeanor or felony. The penalties for retail fraud are as follows:

First degree retail fraud: Theft of property of $1,000.00 or more constitutes retail fraud in the first degree, which is a felony under Michigan law, and carries up to 5 years in prison, or a fine of not more than $10,000.00 or 3 times the value of property stolen.

Second degree retail fraud: Theft of property of $200.00 up to $1,000.00 constitutes retail fraud in the second degree and carries up to 1 year in county jail, up to $2,000.00 fine or 3 times the value of property stolen.

Third degree retail fraud: Theft of property under $200.00 constitutes retail fraud in the third degree and carries up to 93 days in jail, up to $500.00 fine or 3 times the value of property stolen.

Judge Jennifer Andary and Judge William Hackel will go out of their way to give someone a second chance. Normally, almost every misdemeanor, including retail fraud, can be favorably resolved in the 42-1 District and the 42-2 District.  To be specific, both courts will take a retail fraud under advisement or set a deferral period. Upon successful completion of the deferral period the case is DISMISSED. During the deferral period, the offender is required to comply with any of the following conditions ordered by the court:

  • Attend appropriate program ranging from a 1-day class to a long-term substance abusecounseling program.
  • Possible drug/alcohol testing.
  • No contact with the retail establishment where the offense occurred.
  • Payment of combined fines and costs approximately $1,000.00.
  • Possible community service.

If you are charged with a felony, ask a local Macomb County criminal defense lawyer how it is possible to get it reduced to a misdemeanor, avoid jail and avoid a felony record.

Link: extensive coverage of retail fraud cases in Macomb County

Domestic Violence and Assault

The crimes of domestic violence and assault & battery are found in MCL 750.81

Most of those that we represent for domestic violence or assault have never been in trouble with the law and are looking for a way to get out of the system Scott-Free without a domestic violence conviction. An outright dismissal of a domestic violence or assault crime in Macomb County is possible when the victim does not want to prosecute. This is not as easy as it sounds and the services of an experienced local Macomb County criminal defense attorney can make a huge difference between getting a case dismissed and winding up with a big fat legal mess.  A local Macomb County domestic violence lawyer will formulate an individualized strategy to deal with the following potential problems that may arise:

  • How the victim should respond to the prosecutor and victim’s rights advocate.
  • Whether the victim will be held in contempt of court for failing to appear for a court date or trial.
  • How to deal with the prosecutor that intends to use the police report and witness statements when the victim does not cooperate.
  • How to avoid getting hit with witness tampering and/or obstruction of justice accusations.

Big 3 Options if you are charged with Assault or Domestic Violence: There are 3 options in the criminal justice system for a person charged with an assault crime or domestic violence which are as follows: 

  1. Seeking a dismissal when the victim adamantly does not want to testify or appear against the accused party.
  2. Pleading pursuant to MCL 760.4a which will result in a dismissal after a term of probation.
  3. Conducting a trial before the judge or a jury.

Link: extensive coverage of assault and domestic violence cases in Macomb County

 

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ABDO LAW has several publications dedicated to “frequently asked criminal law questions and topics”. This publication is committed to the topic of  pretrial conferences and probable cause conferences in Macomb County District Courts. The signficance of pretrial conferences and probable cause cannot be ignored. The vast majority of criminal cases are resolved by a plea bargain during these stages of the criminal process. According to the Bureau of Justice Statistics, about 95 percent of criminal cases in the state and federal system are disposed of through the process of plea bargain.

What is a pretrial conference? A probable cause conference?

Pretrial conferences are scheduled in both criminal and civil cases. For criminal misdemeanor cases, a pretrial conference is a meeting that is scheduled by the court and attended by the defendant’s attorney and the prosecuting attorney.   The major purposes of a pretrial conference and probable cause conference is to facilitate resolution of a case, management of a case for trial or management of a case regarding other housekeeping matters (listed below).  Generally, the Judge and witnesses are not directly involved in the conference process. However, the victim will be advised regarding the outcome of a pretrial conference and most prosecuting attorneys require the consent of the victim to any plea bargain to reduce or amend criminal charges. In addition to negotiations and plea bargaining, there may be pretrial hearings on the validity of confessions, searches, identification, etc. Other matters covered at the pretrial conference include motions and requests to determine whether evidence will be admitted or suppressed at trial. In truth, most judges hate trials and will encourage the litigants to strive for case resolution. If a case is not resolved, the court may schedule additional pretrial conferences to give the parties an opportunity to fully explore the possibility of plea bargaining. Getting a criminal charge dismissed is also a possible pretrial conference result. 

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Drug overdose deaths on the rise!

Drug overdose deaths exceed 100,000 per year in the United States

Recently compiled information derived from CDC’s National Center for Health Statistics indicates that there were an estimated 100,306 drug overdose deaths in the United States during 12-month period ending in April 2021. This represents an increase in drug deaths of 28.5% from the 78,000 deaths during the same period in the prior year. A breakdown of the statistics for this period shows an increase in deaths due to cocaine, fentanyl, heroin and methamphetamine.  In addition, overdose deaths from opioids were 75,674 nationally compared to 56,064 in the prior year. There have been approximately 1,000,000 drug overdose deaths since 1999. 

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