Articles Posted in Domestic Violence

PT blog picture.jpgThis year, we have published several blogs dedicated to “frequently asked (criminal law) questions”. Whenever possible, we endeavor to avoid legalese by providing articles in layman’s terms. The focus of this blog is pretrial conferences in Macomb County District Courts.

What is a pretrial conference?

A pretrial conference is a meeting that is attended by the attorneys for the parties in a criminal or civil case. The major purposes of a pretrial conference are to facilitate resolution of a case, management of a case for trial or management of a case regarding pertinent issues (as listed below). A pretrial conference is scheduled after either a criminal or civil case is filed with the court, a case number and a Judge are assigned. In Macomb County, criminal pretrial conferences are held soon after the arraignment. For misdemeanors, which occur in Macomb County, the pretrial conference will always be held at the district court (click here for complete listing of links to Macomb County District Courts). Felony pretrial conferences can occur on the date scheduled for a preliminary examination and again after the case is bound over to the circuit court. A person charged with a crime (the defendant) is required to be present on the date scheduled for pretrial conference. However, he or she is usually not allowed in the conference room with the attorneys. On the other hand, police officers and victim’s rights advocates with court business are allowed in the conference room. Likewise, an alleged victim may be present at the pretrial conference as the prosecutor must obtain the victim’s consent for a plea bargain in most criminal cases.

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Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called “he said/she said” cases)?

Answer: YES.

This is a question that we are frequently asked in cases involving relationships such as spouses, lovers, family members etc… These cases usually involve domestic violence, assault crimes, stalking, sex crimes or other personal crimes. The prosecutor may opt to charge a person with the alleged crime even though the suspect denies the allegations, there are no other witnesses and there is a complete lack of any other evidence (no injuries, no video, no confession).

Evidence Traps in He Said/She Said cases

The police agency assigned to cases such as this are often aggressive and will attempt to try and gain a confession from the accused to strengthen the case for prosecution. Sometimes in “he said/she said” cases, the alleged victim will call the suspect on the telephone with a script of loaded questions. A recording of the conversation can be used as evidence unless it is obtained illegally (Michigan Law-recording conversations). The phone call may be initiated with police encouragement before the suspect has knowledge that a police report has been filed!

As an active criminal defense lawyer in Macomb County, our firm has represented 1000’s of clients charged with crimes. Sometimes, the only evidence is the statement by an angry party in a tumultuous relationship who is seeking attention, revenge or retaliation. Far too often, the police attempt to get the suspect to talk for the purpose of proving facts surrounding the alleged incident such as alcohol consumption or an argument. Remember, the police rarely call someone unless a police report alleging a crime is filed. For this reason, you should retain a lawyer if you are suspected or charged with a crime and refrain from talking to the police.

Links to some other frequently asked questions:

Can my case be dismissed if I wasn’t advised of my Miranda rights?

Am I entitled to make a phone call if I am arrested?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Do court appointed lawyers work for the police and prosecutor?
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Many of our blogs explore criminal and drunk driving issues within the realm of our law firm’s expertise. Others are about the Courts where we frequently practice law. This blog is about the 42-2 District Court in the City of New Baltimore where we regularly provide legal services to our clients who are charged with criminal and OWI cases arising out of New Baltimore, Chesterfield Township, New Haven and Lenox Township.

The 42-2 District Court, located in the City of New Baltimore, has posted a list of possible fines and costs for various crimes. The list also contains a warning as follows: ALL FINES AND COSTS ARE DUE AT THE TIME OF SENTENCING, WE DO NOT GIVE TIME TO PAY. This warning is followed by strong language that failure to pay fines and costs will result in jail time.

42-2 District Court Drunk Driving Range of Fines and Costs

The approximate range of fines and costs for a first offense Operating While Intoxicated (OWI) or Impaired Driving (OWVI) in the 42-2 District Court is from $500.00 to $1,000.00. For a second drinking and driving offense, the range jumps to $1,000.00 to $2,500.00. This does not include other costs such as probation oversight expenses, substance abuse screening, driver responsibility fees, police/municipal response costs, random testing and substance abuse counseling. The driver responsibility fee for OWI is $1,000.00 per year for 2 years and for $500.00 per year for 2 years upon conviction of Impaired Driving. Based upon my experience, Judge Hackel yields to the low side of the range for fines and costs with respect to drinking and driving cases compared to many other courts.

42-2 District Court Partial List of Fines and Costs for Misdemeanors and Drunk Driving

  • OWI, IMPAIRED First Offense $500.00 – $1,000.00
  • OWI, Impaired, Second Offense $1,000.00 – $2,500.00
  • Driving while License Suspended $300.00 – $500.00
  • Domestic Violence $300.00 – $800.00
  • MIP and Open Intoxicants $200.00 – $500.00
  • Disorderly Conduct $200.00 – $500.00
  • Possession of Marijuana $200.00 – $800.00
  • Retail Fraud $200.00 – $800.00

Again, the above range for fines and costs does not include probation oversight expenses, restitution to any victim, driver responsibility fees, evaluations, police/municipal response expenses and other possible costs.

I would also like to add that our firm can often have many of these listed crimes dismissed whenever a client is eligible for a delayed sentence or a first offender program. For example, our firm handled a retail fraud case for a client who did not have a prior record. The case was dismissed after a short period of non-reporting probation after the client paid only $300.00 fines and costs. We have had similar results in other cases involving domestic violence, disorderly conduct, possession of marijuana, youthful offenders (age17 to 20) and other criminal offenses.

An attorney cannot ethically guarantee a result in a criminal case. However, I have found that some Judges will consider a person’s financial circumstances when imposing fines and costs. In addition, our firm has been able to advocate that an impoverished person be allowed to provide community service to defray fines and costs in extreme cases.

Judge Hackel is a Judge that will listen to a lawyer’s arguments and be willing to give someone an opportunity to have a case dismissed upon compliance with terms of probation. He is a concerned and reasonable Judge that wants to see a person improve his or her life. However, like other Judges in most jurisdictions where we practice, he is not likely to be sympathetic if someone violates probation.

The 42-2 District Court has jurisdiction over the following municipalities: New Baltimore, Chesterfield Township, New Haven and Lenox Township. Judge William Hackel III is the presiding Judge for the Court which is located at 35071 23 Mile Rd New Baltimore, MI 48047, phone: 586-725-9500. Information about other district courts located in Macomb County can be found at the county’s website.

Other Court and Community Blogs:

ROMEO FINES AND COSTS

RETAIL FRAUD IN ROMEO OR WASHINGTON TOWNSHIP

ST CLAIR COUNTY

RETAIL FRAUD CASES AND THE 52-4 DISTRICT COURT TROY

RETAIL FRAUD CASES AND THE 32-A DISTRICT COURT HARPER WOODS

RETAIL FRAUD IN THE 41-B DISTRICT COURT CLINTON TOWNSHIP

CRIMINAL AND TRAFFIC JURISDICTION OF THE 42-2 DISTRICT COURT

41-A DISTRICT COURT, STERLING HEIGHTS
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Jet.jpgSelfridge Air National Guard Base (SANG) is one of the oldest military air fields in the United States. It is located in the Township of Harrison, County of Macomb and is situated on prime Lake St. Clair property. Approximately 6000 air and army national guard, as well as civilian employees, are employed and/or housed at the SANG base. There are numerous units assigned to SANG including the 127th Wing (Michigan Air National Guard), customs and border protection and the Coast Guard.

There are many SANG military personnel who are married, live on or off base, and are residents of a state other than Michigan. Our attorneys have represented SANG military personnel for numerous legal matters including drinking offenses (drinking and driving), domestic violence, assault crimes, drug crimes and retail fraud (shoplifting). Anyone in the military who is charged with a criminal offense faces special circumstances which we are prepared to defend. We understand that when a military person (reserved or enlisted) gets into trouble, he or she faces possible rank demotion, loss of security clearance and/or dishonorable discharge from military service upon conviction for a criminal offense.

When a military person becomes a client of our firm, we are aware of their special needs and potential consequences. Certain convictions may be detrimental to a military career. There are other ramifications such as travel restrictions and possible incarceration. When a drinking a driving (DUI or OWI) is charged, the issue may be less compelling and only involve the driver license sanctions for a non-resident. Our job is to identify the needs of our military clients and address these particular needs and concerns. For example, a recent client who was charged with domestic violence needed permission to travel out of the state and the country. The case was resolved favorably whereby the case will be deferred and dismissed after a period of probation. The Judge also granted permission for our client to travel out of state and out of the county.

10d476ab150908e1a8f30400f28fdec6Well, December has never been a month where business is slow at the shopping malls or at our law firm. December is the month when people get out of their routine. What I mean is that many tend to drink more, spend more money, drive more frequently and have greater periods of time with family members. Existing drinking problems, substance abuse, depression, strained relationships and financial troubles are put to the test during the holiday season. All of these situations can lead to criminal problems such as drunk driving, retail fraud and domestic violence.

As a Macomb County criminal defense lawyer, I consider myself sensitive to the needs of our clients during the holidays. What can you say when someone gets charged with retail fraud (shoplifting) who suffers from depression or a substance abuse problem? I am just saying that people are just people and I do not sit in judgment of those who are less fortunate or troubled. I have found that the Judges in Macomb County to be reasonable with those who have no criminal record but find themselves charged with retail fraud under various circumstances including financial hardship or other stessors. In these cases, our attorneys are able to negotiate a plea bargain to have the case dismissed after a period of probation and conditions which may mean attending an economic crime class. This is true for clients that we have represented in every Macomb County District Court.

The holiday season is also a time of parties and gatherings which invariably involve alcohol. I have represented my share of teatotallers and social drinkers who have one too many at a holiday house party and wind up being charged with drunk driving. This can happen to anyone who has a few drinks and gets stopped by the police a few blocks from home. I cannot count the number of clients that I have represented for drunk driving who are pulled over in their own subdivision or even while pulling up in their own driveway. In Michigan, a person is considered legally drunk if his blood alcohol content (BAC) is .08% or greater regardless as to whether or not the person was actually intoxicated. To make matters worse, Michigan has passed a super drunk law making it a more serious crime if the blood alcohol content is .17% or greater. Sobriety is not a defense to a charge of Operating While Intoxicated (OWI or DUI) or Super Drunk. Various drink/weight index charts provide an approximate blood alcohol content (BAC) which can be helpful for anyone considering a few drinks before driving. The best advice that I can give is to have NONE FOR THE ROAD since the BAC charts are only an approximation and do not take individual tolerances into consideration; Even one drink can create misunderstandings in the eyes of the law if an accident occurs and someone is injured or dies.

Teen%20Text%20closeup%20%20%20500[1].jpgA NO CONTACT ORDER can be ordered in virtually any criminal case including retail fraud/shoplifting cases. In Macomb County, courts will invariably enter a NO CONTACT ORDER against an offender as a bond condition or upon conviction of retail fraud/shoplifting at the time of sentencing. In Michigan, courts routinely impose a NO CONTACT ORDER as a condition of being released or bonded for personal criminal offenses such as domestic violence, stalking, sex crimes and assault. For these offenses, the offender is prohibited from contacting the alleged victim.

Contact, for purpose of NO CONTACT ORDERS, is broadly defined to embrace any direct or indirect contact or communications by the offender or by using third parties to contact the victim. Contact also includes the use of all electronic media (phone, fax, cell phone, computer) to make contact. Therefore, contact can occur if the offender sends a text or email, posts something on the internet or uses a friend to make a phone call. A violation of the NO CONTACT ORDER may result in revocation of bond and jail.

An offender may unwittingly be the victim of a NO CONTACT ORDER violation when the offender responds to an email or text message from the victim or someone associated with the victim. It may very well be a violation even though the offender did not initiate the contact. Anyone who is under the jurisdiction of a NO CONTACT ORDER must be vigilant and prudent.

imagesCA5QZEZW.jpgIn this 3 part series, I describe different scenarios and possible outcomes for domestic violence cases in Macomb and Oakland County. When our attorneys get a call for a domestic violence case, we know that the incident involves a relationship or marriage. Domestic violence cases also arise when an assault occurs between siblings or between parents and children. There is strong public policy associated with domestic violence cases in Michigan which places a great deal of pressure upon law enforcement and the courts. When someone is charged with domestic violence, the government takes over the case, the court can enter a no-contact order and there are numerous obstacles to getting the charge dismissed even with the victim’s consent. The penalties and stigma associated with a domestic conviction are huge.

Most domestic violence investigations or charges are initiated when a spouse or girlfriend calls 9-1-1 and reports that they were physically assaulted. A case can also be initiated when the person who was allegedly assaulted contacts the police within a few days after the incident. The police will take a statement and photographs if there are any visible bruises or injuries. The police may arrest the suspected party based upon the statement of the alleged victim or contact the suspect to for an interview. In most cases, the police will press charges even if the suspect denies the incident or claims self-defense.

A person suspected of domestic violence should refrain from making a statement to the police. First of all, the person making the statement is probably in an angry and emotional state of mind. This rarely lends itself to a rational statement. Second of all, the suspected party may admit to incriminating conduct such as intoxication or an argument which can be used against the suspect at trial. There is also the risk that the police will write a report which misinterprets or is contrary from the suspect’s statement. Lastly, most of our clients charged with domestic violence are first time offenders who have never been charged with a crime and do not comprehend law enforcement interrogation tactics. For these reasons and more, our law firm routinely advises our clients to exercise their 5th Amendment right to remain silent, hire a lawyer and have the lawyer contact the law enforcement agency.

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Once a domestic violence case is in the system, the court will send out notices to the attorney and to the victim. A domestic violence case is a criminal offense which is classified as a misdemeanor in Michigan. The case will be scheduled in the district court for various court dates including: arraignment, pretrial conference, trial and sentencing.

If the case is not resolved by plea bargain after a pretrial conference, the accused may demand a trial. A jury trial or bench trial may be requested. A bench trial is a trial before the judge without a jury. I favor bench trials in certain domestic violence cases because a judge is able to focus on the admissible relevant evidence and discount the drama and side shows.

Clients often ask me if the case can be dismissed if the victim does not show up for court. An attorney cannot ethically advise anyone to ignore a court notice or subpoena. In addition, once someone is charged with domestic violence, the case is pursued by the government and the police may admit the police report as evidence in the event that a victim fails to appear in court for trial. However, our attorneys would make a motion to dismiss the case if the victim fails to appear for one or more trial dates. A judge may consider granting the dismissal without prejudice. When a dismissal is granted without prejudice, the case may be reinstated in the future by the victim. When a case is dismissed with prejudice, it can never be reinstated.

Once in a while, it will come to our attention during the pendency of a domestic violence case that the victim is willing testify that he or she made false statements to the police or that the police report is inaccurate. In this scenario, we try to preserve any exculpatory statements by obtaining a written or recorded statement from the victim. Here are some possible legal maneuvers which can occur when a victim provides a conflicting statement, especially one which is favorable for the defense. An attorney can use the victim’s subsequent written statement at trial for impeachment purposes if the victim attempts to recant the same. When we can admit the statement, it may discredit or weaken the victim’s testimony to the extent that the judge or jury cannot find the defendant guilty beyond a reasonable doubt. On the other hand, the prosecutor may try to introduce evidence to indicate that the victim was threatened or coerced to provide a favorable statement for the accused. In addition, I have seen prosecutors in Macomb and Oakland County threaten victims with charges of filing a false police report when they attempt to change their earlier statements which were made to law enforcement officers at the time of the alleged incident.
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500_1188330532_533138_45768535[1].jpgOnce arrested, a person charged with domestic violence will be held in jail, usually about 10 to 20 hours. Upon release, the person may have to post a bond which will be held by the court.

Almost anyone charged with domestic violence in Macomb County, as well as Oakland County, will be ordered to have no-contact with the victim. This is true even if the victim and the person charged are married and live in the same residence. Another scenario is when the alleged victim is not on the title or deed to the real estate, such as a live in girlfriend or boyfriend. Again, the person charged, or the owner of the residence, may be prohibited from returning to his or her own residence while the victim is present. A “no-contact” order as a condition of bond continues until it is lifted or removed by the district court judge. The district court judge may also continue the “no-contact” order as a condition of sentencing. A “no-contact” order can be lifted with the victim’s consent which usually requires an appearance before the judge with both parties present. An attorney can often expedite a hearing to remove a “no-contact” order if both parties consent.

The path of least resistance for a person charged with domestic violence is to plea pursuant to MCL 769.4a. Our firm has been able to successfully negotiate a plea bargain pursuant to MCL 769.4a in every Michigan district court where we practice, including Macomb, Oakland and Wayne County. This Michigan law allows for a person who is charged as a first offender to have the domestic violence case dismissed after a one (1) period of probation. The conditions of probation will vary, depending upon the court, but will usually include the following components:

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