This is the most frequent question that lawyers receive from their clients, “Am I going to jail?”
Most people being charged with a crime for the first time are not familiar with the justice system and do not know what to expect from their case. For the most part, first time misdemeanor offenders who are compliant with their bond conditions are not looking at serving time in jail. The exaggerated fear of jail is often what causes defendant to avoid legal obligations, skip court dates, evade law enforcement, and ironically is what lands them in jail. If you’re being charged with a misdemeanor and are scared and anxious, it is most likely more manageable than you think. This article gives an overview of whether or not a defendant should be anticipating jail time in their misdemeanor criminal case. Generalizations made here apply primarily to experience in Macomb County, though our office has found the following to be true throughout its practice in Metro Detroit.
An attorney cannot ethically guarantee a result in a criminal case. The bottom line is that nobody owns the judge. However, the reality, based upon our experience, is that jail is seldom imposed upon individuals convicted of misdemeanors in the District Courts.
There are numerous exceptions which will explained further below.
Unlike their Circuit Court counterparts, District Courts do not have sentencing guidelines. This gives District Court judges very broad discretion in fashioning sentences. This usually means that case strategy is best tailored to the individual policies of the specific judge that will be sentencing our office’s defendant. First time offenders, in just about all cases, are probably NOT looking at jail for the following offenses.
– Drunk driving
– Operating under the influence of drugs
– Retrial fraud
– Misdemeanor assault crimes/domestic violence
– Driving while license suspended
– Possession of marijuana/paraphernalia/use of marijuana
– Disorderly conduct
– Minor in possession/ open intoxicants
– Malicious destruction of property
– Traffic misdemeanors
– Misdemeanor theft/ fraud crimes
In just about all of the above circumstances the offender will be looking at a probationary term. Broadly speaking one year of probation should be anticipated. Sometimes the court will depart from that for the better or worse. Most of the Districts in Macomb impose one year probation for first offense misdemeanors. Some of the courts in Oakland County impose longer probation terms. Moreover, most first time offenders (excluding DUIs and traffic offenses) are eligible for some type of diversionary program that will keep their records clean. While jail is not necessarily on the table in most misdemeanor cases, it is our function to minimize the terms and conditions of probation.
On the other hand, many factors may result in jail time for someone convicted of a misdemeanor. For example, drunk driving cases with aggravating circumstances can always bring jail into the equation. Given that public policy promotes the punishment of intoxicated drivers – this is one area of misdemeanor practice where judges can be very harsh. If there is a high blood alcohol content (BAC), an accident, a victim, a child in the vehicle, the presence of Mother’s Against Drunk Drivers (MADD), lack of cooperation with the police, or other vexing circumstances jail may be possible. As it relates to the majority of cases in Macomb County, first time DUI offenders with low to moderate BAC levels that do not get into an accident are not looking at jail. Of course, probation with conditions is to be expected.
In all misdemeanor cases, certain aggravating factors can influence the potential imposition of jail time. Based upon our experience, the following circumstances increase the possibility of jail:
Victims: Courts answer to victims. If there is a victim of physical violence, extreme verbal taunts, or property damage the judge may consider jail time.
Non-compliance with law enforcement: A question we often ask is if the client was cooperative with the arresting agency. The police remain critical at all stages of the legal process. If a law enforcement agent makes a damaging statement at sentencing it have a severe negative impact on your case.
Non-compliance with bond: Defendants who do not obey the terms of their bond make their attorney’s job much harder. Normally drug and alcohol testing are imposed while a case is pending. Defendants who miss or fail these tests are not going to impress the court. This can enhance the possibility of incarceration.
Criminal history: Most of this blog post deals with first offenders. Repeat offenders are always at risk of jail time. This is especially true for drinking and driving offenses, as second offenses carry a mandatory five (5) days – though offenders could be looking at much more. Offenders in court for crimes of violence more than once may also be looking at jail.
New charges while a case is pending: To some extent this goes to the two categories above. To pick up new charges while a case is pending sends the message to the judge that the offender doesn’t understand the severity of a criminal charge. While a case is pending, the court is expecting defendants to be on their best behavior. A new charge is points to a pattern of criminal behavior.
Offensive conduct towards the justice system: Defendants who want to make a point or editorialize to the judge about their feelings on the justice system often land themselves in jail. Court is necessarily a formal and somber place. Generally, judges are intolerant of defendants who choose to lash out, disrespect the legal process, or make inappropriate use of humor.
Probation violations: Judges can sentence up to the maximum term of the underlying sentence when someone is found guilty of a probation violation. For example, if a defendant is serving one year of probation for a crime that could have landed them in jail for two years, the probation violation could carry up to that maximum, two years. Read more about probation violations here.
Jail is expensive and arguably ineffective at rehabilitating offenders. Many judges would prefer to use it as a last resort. Even when a case has some of the issues listed above, Abdo Law is experienced in smoothing out problematic areas to make a case more presentable to the court. In other words, we can take preemptive action to curtail the impact of criminal charges. One of our goals is always to present the court with reasons to keep our clients out of jail and seek alternative sentencing, plea bargains, which can result in dismissals. This requires an individual approach to each case. In some instance this may be recommending counseling or perhaps in others a traffic safety program. Moreover, Abdo Law always takes the time to explain courtroom etiquette and procedure to clients so they are prepared to speak before the judge. If you are being charged with a first offense misdemeanor it is probably not as bad as you think. Contact the experienced attorneys at Abdo Law to start building a strategy to minimize the repercussions of your legal issue.