Articles Posted in Felony Crimes

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READ THIS PARAGRAPH even if you don’t read anything else on this page!

This is a must read if you are thinking about obtaining a gun or a Concealed Pistol License. Obtaining a Concealed Pistol License (CPL) is easy. For those meeting CPL eligibility, attending a CPL class and shooting your firearm at a close range target is about all that is required. However, once you obtain a CPL, you will need to be constantly vigilant when you are carrying your firearm, handling your firearm and storing your firearm. I would urge anyone that has a Concealed Pistol License (CPL) to get a lawyer on retainer for any possible predicaments or advice as necessary with issues that may be on the horizon. We believe that most CPL holders are responsible and never have a desire to use a firearm against another human being unless absolutely necessary for self-defense. However, knowing when you can act in self-defense and what to do if you use a firearm are of the utmost importance if you are thinking about carrying a firearm. If you use a gun against another person, the police will conduct an investigation according to assault and homicide protocol. You may be the one that ends up calling the police if nobody else is around. The 911 recording will be kept as evidence. Whatever you say on that 911 call could be the difference between winning a trial on self-defense grounds or getting convicted of a felony. The police will also take witness statements from the friends of the bad guy. What do you they will say about the incident? In addition to the police, if you draw your gun and shoot someone, family members of the bad guy will attempt to vilify you and put pressure on the police and prosecutor to take criminal action for an assault or a homicide crime even though you acted in justifiable self-defense.

Potential criminal charges for drawing or using a firearm against another person

If you carry a concealed weapon (CCW) without a permit, it is a felony punishable by up to five (5) years in prison. Whether you have a permit to carry or not, once a gun is drawn in the presence of another person, there is the possibility of being charged with an assault crime and/or firearm crime, such as:

  • Assault with a dangerous weapon
  • Assault with intent to do great bodily harm
  • Assault with intent to murder
  • Homicide
  • Intentionally discharging a firearm aimed without malice
  • Possession a firearm on prohibited premises
  • Brandishing a firearm
  • Reckless discharge of a firearm
  • Possession of firearm under the influence

A criminal defense lawyer can estimate whether you will be treated as a hero or a criminal for using a firearm against another person. It is important for anyone with a CPL to know things such as whether it is permissible or a crime to use a gun from a moving vehicle or whether you can draw your weapon to scare off an annoying person.

Basic rules of self-defense

Michigan is a Castle Doctrine state and has a “stand your ground” law. A person may use deadly force, with no duty to retreat anywhere he or she has the legal right to be. Any person who uses a gun legitimately in self-defense has immunity from civil liability.

Use of Non-deadly Force: An individual not engaged in the commission of a crime may use non-deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if the person honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

Use of Deadly Force: An individual not engaged in the commission of a crime may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if the person honestly and reasonably believes that the use of that force is necessary to prevent:

  • Imminent death of or imminent great bodily harm to himself or herself or to another individual; or
  • Imminent sexual assault of himself or herself or of another individual.

Be a student and practice the art of self-defense

It is important to continuously practice using a firearm and research various firearm and self-defense scenarios that you might encounter. It is also wise to consider self-defense training for situations when a firearm is not appropriate or your firearm is not readily accessible.

There is no such thing as “one size fits all” when it comes to self-defense. Fortunately, there are numerous outstanding resources and courses available to keep yourself sharp and prepared to defend yourself should the need arise.  The internet is a vast source of every imaginable self-defense situation that you possibly could encounter:

There are countless scenarios that you need to consider when acting in self-defense either with or without a firearm. Do your research on common self-defense situations. Also, ask your lawyer about matters that might seem obscure but that could arise such as whether it is ever appropriate to use your firearm from a moving vehicle against another person in a moving vehicle. Here is what we say in our website about using a firearm from a moving vehicle:

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Michigan citizens are serious about their Second Amendment firearm gun rights

We are living in an unprecedented time. On top of the Covid-19 global pandemic, there are racial tensions, social unrest, unemployment, pandemic lockdown measures, social isolation and tumultuous politics. All of this friction is making people feel nervous, frustrated and afraid. There are conspiracy theories and fears that the election may bring about stricter gun laws. People are arming themselves in record numbers to feel safe.

Michigan Firearm Carry Laws

In the State of Michigan, it is always legal for an individual to keep a firearm at his or her residence and place of business. However, carrying a concealed weapon without a CPL in a motor vehicle, or other place outside of the home or business, is a felony that can carry 5 years in prison. Here are the basic rules in Michigan regarding open and concealed carrying of a firearm:

Open Carry: In Michigan, it is legal for a person to carry a firearm in public (open carry) as long as the person is carrying the firearm with lawful intent and the firearm is not concealed. You will not find a law that states it is legal to openly carry a firearm. It is legal because there is no Michigan law that prohibits it; however, Michigan law limits the premises on which a person may carry a firearm. There is no such right to “open carry” a firearm in a motor vehicle unless it is being lawfully transported.

Carrying a Concealed Weapon: You may conceal-carry a pistol in a motor vehicle and non-restricted places with a Michigan Concealed Pistol License (CPL) but it is a serious felony to carry a concealed weapon without a CPL.

-Concealed Defined: The carrying of a pistol in a holster or belt outside the clothing is not considered carrying a concealed weapon. However, carrying a pistol under a coat is carrying a concealed weapon. Attorney General Opinion 1945, O-3158. According to the Court of Appeals a weapon is concealed if it is not observed by those casually observing the suspect as people do in the ordinary course and usual associations of life. People v. Reynolds, 38 Mich App. 159 (1970).

Transporting a pistol without a CPL: You may transport a pistol in a motor vehicle without a CPL if it is being transported for a lawful purpose and according to strict requirements (unloaded, separated from ammo and occupants).

MCL 750.227 is the Michigan Statute which makes it a felony to carry a concealed weapon:  A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license. A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.

Transporting a Firearm in a Motor Vehicle

Michigan law details how firearms may be transported in a vehicle. MCL 750.227c and MCL 750.227d discuss the transportation of firearms, other than pistols, in vehicles. It is a felony for a person without a CPL to transport a pistol  in a motor vehicle. MCL 750.231.a provides the exceptions to this rule. In general, the statute allows for transportation of a pistol for a lawful purpose which includes going to or from any of the following:

  • A hunting or target area
  • A place of repair
  • Moving goods from a home or business to another home or business
  • A law enforcement agency for a safety inspection or to turn the pistol over to the police
  • A gun show or place of sale or purchase
  • A public shooting facility
  • Public land where shooting is legal
  • Private property where a pistol may be lawfully used

Properly transporting a pistol requires that it be unloaded, kept in closed case designed for firearms, and in the trunk or not be readily accessible to the occupants if the vehicle does not have a trunk. There is no way to “open carry” a pistol in a vehicle. An individual, without a CPL or who transports a pistol in a vehicle without having a lawful purpose as stated above, may be in violation of MCL 750.227, the carrying concealed weapons statute.

Macomb County & Metro Detroit: Record gun sales in 2020

According to FBI data, 27 million guns, a record number, were sold in the United States in 2016. According to a CNN article, it expected that the gun sales record of 2016 will be broken before the end of this year. In September alone there was a 61% increase in gun sales from the same month in 2019. Gun retailers and industry analysts say its normal for Americans to stock up on firearms and ammo during an election year. According to the analysts, the surge is motivated by fears that a Democratic president might expand restrictions on gun ownership. But this year’s sales spike is different because it’s being driven by a rise in first-time gun buyers, especially among African Americans and women.  Macomb County is mirroring the national trend with gun and ammunition sales up sharply in 2020 amid the Covid-19 pandemic and other concerns.

Felony conviction precludes possession or ownership of a firearm

CCW is classified as a felony. Pursuant to federal laws, a person convicted of a felony loses Second Amendment rights and cannot own or possess a firearm. Possession of a firearm by a convicted felon carries up to ten (10) years in prison.

If you are charged with CCW in the counties of Macomb, Oakland or Wayne, then you need an experienced criminal defense lawyer for felony representation to help you avoid a felony and retain your Second Amendment rights as is explained in more detail below.

Other Common Crimes Involving Firearms

A felony conviction means never being able to own a gun without restoring gun rights after a ten (10) year waiting period. Misdemeanor offenses do not preclude gun ownership or possession. However, most misdemeanor convictions will result in denial of CPL privileges for up to eight (8) years.

The following is a list of common firearm crimes that we are seeing in Metro Detroit (counties of Wayne, Macomb, Oakland and St. Clair):

  • Carrying a concealed weapon
  • Assault with a dangerous weapon
  • Carrying a concealed weapon in a motor vehicle
  • Brandishing a firearm
  • Reckless discharge of a firearm

It is illegal to own or possess a firearm if you get any type of felony conviction. If you have a CPL and get a misdemeanor conviction, you face denial of your CPL privileges for several years.

Avoiding a felony record is the only way to retain your gun rights

In 2019, there were a total of 5,810 incidents of felony CCW reported in the State of Michigan and several thousands of other crimes related to firearms. Get a local criminal defense lawyer if you are charged with CCW or any other felony in any city or township in Macomb County, Oakland County or Wayne County.

Depending upon the prior criminal record of the offender and the circumstances of each case, there is a strong possibility of avoiding a felony conviction. Even those with a criminal record, can ask for a deviation to get a felony reduced to a misdemeanor.

In Macomb County, the prosecuting attorney’s office has a protocol in negotiating a felony charge to a misdemeanor or under a special provision of law which can result in a dismissal. The Macomb County Prosecuting Attorney has authority over felony matters in the following courts:

In Wayne County, the prosecuting attorney’s office has a specially assigned attorney known as a “diversion attorney”.  Diversion is a special status which can be assigned to a file that can result in NO entry of guilt and a complete dismissal at the end of a designated period of time. The file is essentially “diverted” from the criminal system.

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With over 50 years of combined criminal defense experience, ABDO LAW specializes in expunging and setting aside prior convictions for all folks eligible across Michigan. Historically, criminal records have held many Michiganders in perpetual poverty. Contrarily, successful expungement proceedings have created economic opportunity and full participation in Michigan’s economy and society for clients of ABDO LAW.

According to a 2020 Harvard Law Review article, only 6.5% of those legally eligible for an expungement in Michigan obtain it within 5 years of eligibility. Moreover, those who successfully obtain an expungement / set aside a conviction experience a substantial increase in their wage and employment trajectories. On average, within 1 year, wages go up by over 22% versus the pre-expungement trajectory.

Deep within Abdo Law’s core values are closely held beliefs that people deserve 2nd chances, people are able to change for the better, and the law is alive to accommodate personal and societal changes. With a 100% success rate, expungement proceedings are one way in which Abdo Law lives out their core beliefs.

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Minneapolis police officer shown kneeling on George Floyd’s neck as Floyd pleaded for help.

Imaginary lines in space decide many of the rights and obligations of American life. These boundary lines have tremendous effects on our sense of self and to whom we feel connected. Far more than just emotional and psychological consequences flow from where we live and how we identify. (Read Democratic Education and Local School Governance.) In America, geography and identity determine one’s legal power and opportunity.

3 recently recorded incidents of unarmed black men being ridiculed or killed in America have surfaced online and sent communities across both coasts pleading for justice.  The unfortunate stories of Ahmaud Arbery, Christian Cooper, and George Floyd during COVID provides powerful tools for Americans to reflect on our interconnectedness with fellow Americans from different backgrounds and geography.

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

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

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

With more than 40 years experience specializing in criminal defense, I can say that the majority of our clients facing felony charges have never committed a prior felony and the underlying conduct supporting the felony charge does not involve egregious misbehavior.  Nonetheless, a felony charge is possible even for offenses involving simple possession or when a theft involves property valued greater than $1,000.00.

Top Felonies in the Metro-Detroit Courts

Pursuant to the Michigan Sentencing Guidelines, felonies are broken down into categories that determine the accompanying sentence. Punishment for each class is listed below:

  • Class A – Life imprisonment
  • Class B – Up to 20 years in prison
  • Class C – Up to 15 years in prison
  • Class D – Up to 10 years in prison
  • Class E – Up to 5 years in prison
  • Class F – Up to 4 years in prison
  • Class G – Up to 2 years in prison
  • Class H – Jail or other intermediate sanctions, such as fines

 

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

Crime Statistics for Macomb County

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

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

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

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

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

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

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Part 1: Introduction to felony representation and considerations when hiring a lawyer if you are accused, charged or arrested for a felony (or any other criminal matter).

Part 2: Criminal investigations, plea bargaining and actual case results based upon local practices and our extensive experience handling criminal matters in the Macomb County courts.

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 40 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

The topic of criminal procedure refers to the process in which a criminal case moves through the legal system and the court system.  It is important to understand that an entire library of books has been published covering criminal procedure. This publication is intended to give a concise explanation of the criminal process and the legal terminology utilized. In addition, we will discuss criminal defense legal strategies and goals that are relevant at various stages of the criminal process. We are confident that you will find this information invaluable and not available by other attorneys to extent we have provided in this publication.

1. Criminal Investigation

The initial stage in the criminal process is the criminal investigation. A criminal investigation begins when the police have received a police report or have other reasons to suspect an individual of criminal activity. The accused party may never know of the investigation which could result in the matter being closed or the issuance of an arrest warrant. Criminal investigations are conducted by an officer or detective assigned to the case. At this level, witness statements are obtained and the accused party may be contacted for an interview. A person accused of a crime is not required to make any statements to the police pursuant to the 5th Amendment of the United States Constitution. An investigation may take a matter of days or months before it is presented to the prosecutor for authorization.

2. Whether or Not to Talk to the Police

As I stated, there are strategies at every stage of the criminal process that experienced criminal defense attorneys use to gain an advantage in the criminal system. In general, a person accused of crime should NOT speak to the police without the advice of a experienced criminal defense lawyer. Our criminal defense lawyers will look at whether there is any advantage or future benefit by scheduling a police interview. There have been cases where our clients have fully admitted to a crime and we have agreed to a police interview for the purpose of showing good faith and offering restitution at the earliest phase of the criminal process. This strategy is not one that we adopt 100% of the time. I will only consider it if the client fully understands his or her right to remain silent and there is strong evidence or a paper trail that is highly incriminating and a verdict of guilty is inevitable.  Conversely, I would advise against it when the police do not have any evidence to connect our client with a crime. Each case has its own unique facts and circumstances and strategic decisions can only be made on a case by case basis!

2. Request for Authorization of Warrant

Once the police have completed an investigation, the report (witness statements, evidence) is taken to the prosecuting attorney for review. The prosecutor may consider issuing a warrant at this time, seeking a search warrant or dismissing the request for authorization. A request for a warrant is subject to authorization if the prosecutor reasonably believes that there is probable cause to support the stated charge(s).

3. Warrant for Arrest Issued: Defendant may be arrested or may receive a notice to appear in court.

Once a warrant is authorized by the prosecutor, the officer in charge of the case submits the matter to the court with jurisdiction over the matter to officially approve the warrant and enter it into the system. This is also when the warrant is reported to the Michigan State Police and entered in the Law Enforcement Information Network (LEIN) There are two (2) possible scenarios after a warrant is entered into the court system; the accused party (the defendant) is arrested by the police or the accused party receives a notice from the court to personally surrender himself/herself to the court or police to answer the warrant.

4. Arraignment (Felony Arraignment starts in the District Courts)

The arraignment is the first stage in the criminal process when the accused party (the defendant) appears in a courtroom before a district court judge or magistrate. The following districts courts are located in Macomb County:

Locations and Links for the Macomb County District Courts:

  • 37th District: (Warren, Centerline) 8300 Common Rd, Warren, MI 48093
  • 38th District: (Eastpointe) 16101 E 9 Mile Rd, Eastpointe, MI 48021
  • 39th District: (Roseville, Fraser) 29733 Gratiot Ave, Roseville, MI 48066
  • 40th District: (St. Clair Shores) 27701 Jefferson Ave, St Clair Shores, MI 48081
  • 41-A District: (Sterling Heights) 40111 Dodge Park Road, Sterling Heights, MI 48313
  • 41-A District: (Shelby Township, Macomb Township, Utica) 51660 Van Dyke, Shelby Charter Township, MI 48316
  • 41-B District: (Harrison Township, Clinton Township, Mt. Clemens) 22380 Starks Drive, Clinton Township, MI 48038
  • 42-1 District: (Romeo, Washington Township, Richmond, Ray, Bruce, Armada)  14713 33 Mile, Romeo, MI 48065
  • 42-2 District: (New Baltimore, Chesterfield Township, Lenox, New Haven) 35071 23 Mile Rd, New Baltimore, MI 48047

Once a case enters the court system, the accused party is referred to as the DEFENDANT. The defendant is required to personally appear for a felony arraignment. For  misdemeanor arraignments, some courts will allow the formal arraignment to be waived. If the defendant is incarcerated, the arraignment may occur via a video link between the courtroom and detention facility or the defendant may be transported to the courthouse by law enforcement officers.  The formal charges against the defendant are set forth in a document called the COMPLAINT. The following matters are covered at the arraignment:

  • The COMPLAINT is formally read
  • A Plea is entered (NOT GUILTY or STAND MUTE)
  • Bond is set (personal bond, cash bond, surety or 10% bond)
  • Bond conditions are set (drug/alcohol testing, no contact orders, house arrest, GPS monitoring)
  • Probable Cause Conference and Preliminary Examination are scheduled

For all felony matters in the Macomb County District Courts, the court will only a accept a plea of NOT GUILTY or STAND MUTE. A plea of GUILTY will not be entertained at this stage of the proceedings for the protection of the rights of the accused party to obtain a lawyer, obtain the police reports and pursue other rights including preliminary examination and trial.

Bond is an important component of the arraignment. The court has the power to impose a high cash bond and impose restrictions upon the freedom of the defendant which may include: travel restrictions, no-contact order, house-arrest, drug and alcohol testing. It is not always possible for an attorney to be present at the arraignment. This is true when someone is arrested and is unable to retain a lawyer on-the-spot or is brought to court without sufficient time to secure representation. Whenever possible, the presence of a local attorney is advisable at the arraignment. An attorney can make a difference in the amount of bond that is set (cash or personal) and have an influence on the bond conditions.

5. Discovery (Defendant is entitled to all reports, witness statements, evidence)

The US Constitution affords each citizen DUE PROCESS in the court system. In plain English, this translates to include the right to obtain all of the available evidence in all criminal or civil proceedings. The process to obtain evidence from adverse parties in a criminal case is known as discovery. A request for discovery is filed with the prosecutor at the earliest opportunity in a criminal case. A court order can be obtained to facilitate a discovery request. In addition, a party that fails to comply with a discovery order in bad faith, or engages in obstructive discovery tactics, is subject to censure, court sanctions and precluded from introducing evidence that should have been disclosed.

Sterling Heights/Carjacking: In a recent case handled by our firm arising out of the City of Sterling Heights, our client was charged with robbery/carjacking based upon being picked out of a lineup and being found near the location where the stolen car was discovered. Our client had good credibility and passionately denied the commision of the crime. We worked persistently to obtain the discovery that eventually PROVED OUR CLIENT WAS INNOCENT even though the case could have moved forward based upon the identification and other negative circumstances. There were similarities in the facial features of our client and the perpetrator. Fortunately for our client, we were able to obtain:

  • Cell phone tower records (proving our client was not at the scene of the crime
  • DNA of a garment found in the vehicle (DNA did not match our client)
  • Fingerprints on the vehicle (Not a match of our client)
  • Smart Bus video (Our client said he used the bus on the day of the incident. we learned that Smart Bus videos are retained for 30 days and if there is an incident, for 1 year).

The DNA on a garment found in the vehicle was traced to another person who was eventually charged with the crime. In the end, our client was FREE and the CASE DISMISSED after serving 100 days in jail while we unturned every stone to gather evidence that exonerated him.

6.  Probable Cause Conference (PCC)

As part of the arraignment, the accused party will be provided with dates to return to the district court for a Probable Cause Conference (PCC)  and Preliminary Examination (PE). As I have stated, there are opportunities to resolve criminal matters at every stage of the proceeding, including the PCC and PE.

According to the Michigan Statute, MRE 6.108The probable cause conference shall include discussions regarding a possible plea agreement and other pretrial matters, including bail and bond modification.

There are a number of possible scenarios that can occur at the PCC: negotiations to dismiss charges, reduction of a felony to a misdemeanor, disposition of the case at the district court, agreement to plea to a lower felony in the circuit court, disposition to have the matter dismissed with application of HYTA or MCL 333.7411, adjournment of the matter to file a deviation request. Unless waived, the Preliminary Examination will follow when a matter cannot be resolved or it is requested by either the defense or prosecutor.

7. Preliminary Examination: Probable Cause Burden of Proof

The right to a Preliminary is found at MRE 6.110: The people and the defendant are entitled to a prompt preliminary examination. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. Upon waiver of the preliminary examination, the court must bind the defendant over for trial (to the circuit court) on the charge set forth in the complaint.

A Preliminary Examination should not be compared to a trial: The “PROBABLE CAUSE” standard or burden of proof is used at the Preliminary Examination stage of a felony proceeding. This standard is much lower than the burden of proof (BEYOND A REASONABLE DOUBT) required at the trial stage.

MRE 6.110 (E) provides: If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial.

There are a number of strategic reasons that we recommend “holding” the preliminary examination and reasons why we may recommend “waiving” it (not holding it). When we can score points or gain any advantage, we would recommend holding the PE. When the charges are not supported by the evidence or a witness is expected to fall apart on the stand, we will always hold the PE. Holding a PE may be an excellent opportunity to expose a bad case to the prosecutor and judge that could lead to dismissal or a favorable plea deal. However, don’t be fooled into thinking that your case will be dismissed if you hold the Preliminary Examination. If the court finds that additional charges are supported by the evidence according to the low probable cause standard, they can be added after the PE is held.  And, you can count on the prosecutor to threaten to add additional charges if the PE is held.

8. CIRCUIT COURT: Arraignment on the Information

The Arraignment on the Information will occur in the circuit court for felony matters that are waived at the district court level or bound over after a Preliminary Examination is held. The “Information” is the formal charging instrument utilized once a case is entered into the system at the circuit court level. In Macomb County, felony matters will be scheduled at the Macomb County Circuit Court for future proceedings following a “waiver” or “bind-over” in the district courts. The Macomb County Circuit Court is located at:

  • Macomb County Circuit Court: 16th Judicial Circuit Court, 40 N. Main, Mt. Clemens, MI 48043, Phone: 586-469-5150

The Arraignment on the Information is similar to the Arraignment in district court. The court will read the Information and consider whether bond conditions will remain the same or be amended. Bond can be revoked if it determined that the defendant is a possible flight or community risk, or if there have been any bond violations (failed drug tests, violated a no-contact order). Other business that can occur at this stage at the Arraignment on the Information stage are:

  • Entering into a plea bargain
  • Scheduling motions
  • Setting a formal pretrial conference
  • Setting the case for trial

9.  Motions (Requests to the court to facilitate the defense)

Motions are formal requests made by either the prosecutor or defense attorney asking for the court to answer or respond with a court order. Motions can be filed AT ANY TIME DURING THE COURT PROCEEDINGS to address trial issues, admissibility of evidence, bond conditions, dismissal (based upon lack of evidence) and for other reasons to protect the rights of the accused party.  Strategically filed motions may be used  as a tactic to reveal something obscure or personal (psychological record, old police report) that may tend to facilitate a plea bargain or dismissal of the charges.

10. Trial: Right to a Jury Trial Pursuant to the 6th Amendment of the US Constitution

The trial in a criminal case is an adversarial proceeding where the burden is on the prosecutor to present evidence and prove guilty BEYOND A REASONABLE DOUBT. The defendant has the following rights at trial:

  • To be presumed innocent.
  • To remain silent (the defendant is not required to testify)
  • To confront and cross examine witnesses
  • To present a defense to the allegations contained in the Information

Jury Selection: The jury selection process gives the prosecutor and defense an opportunity question prospective jurors, eliminate unfavorable jurors and shed some light on the case at bar. The process of questioning jurors is called VOIR DIRE. Attorneys may eliminate an unlimited number of jurors for cause (prejudice, bias, discrimination). Jurors can also be eliminated without cause (peremptory challenge). A peremptory challenge does not require any reason but each party is limited in the number of peremptory challenges (12 if the matter carries up to life in prison, 5 for other felony matters).

The Trial: Once a jury is selected, opening statements are made to the jurors. After the prosecutor and defense have made opening statements, the prosecutor will present its case first followed by the defense presenting its case after the prosecutor rests. After the defense rests, the prosecutor makes a closing argument followed by the defense closing argument.

Possible Verdicts, Hung Jury, Mistrial: A verdict by a jury in a criminal case must be unanimous. The possible verdicts in a criminal case are: guilty or not guilty. A jury may consider a verdict to a lower or lesser offense(s) when given this option by the jury instructions. When the jury cannot reach a verdict, it is called  hung jury (DEADLOCKED). The court may consider a mistrial because of irregularities or errors during the trial or during jury deliberations.

11. Pre-Sentence Investigation

Upon a plea of a guilty or a finding of guilty after trial to a felony, the court is required to obtain a pre-sentence investigation report to facilitate a fair sentence. The report is prepared based upon the facts of the case, the background of the defendant, substance abuse history of the defendant and criminal record of the defendant. The report also contains a recommendation regarding the sentence which is influenced by any existing sentence agreement and the Michigan Sentencing Guidelines. The court is not required to follow the recommendation within the pre-sentence investigation report and may exceed the recommendation or sentence below the recommendation.

12. Sentencing Phase

The possible sentence that can be imposed in a felony matter will depend upon numerous variables including:

  • The Pre-Sentence Investigation Report
  • Statements by any victims
  • The prior criminal history of the defenant
  • The Michigan Sentence Guidelines

The courts in Michigan are no longer required to sentence within the Michigan Sentencing Guidelines which are now considered to be advisory. Michigan has adopted a sentence policy in favor of “proportionality” to avoid unfair application of variables that are factored into the Michigan Sentencing Guidelines.  Our firm has a policy of filing our own Sentence Memorandum to bring matters to the court’s attention that it would not otherwise be raised. When filing a Sentence Memorandum, we will attach supporting documentation such as character witness letters, psychological/mental health reports, proof of AA meetings, military records, proof of charitable/volunteer services and any other positive documentation that we may deem helpful.

  • Sentence: Probation, Incarceration, HYTA, MCL 333.7411, Delayed Sentencing: As we explain throughout our website and blogs, there are a number of provisions of laws to get a plea deal and sentence whereby an offender can earn a dismissal, sentence leniency, probation and outcomes that don’t necessarily involve incarceration.
  • A word about jail: Jail is not our favorite topic. However, any attorney that practices criminal law extensively and takes on challenging cases will have a fair share of clients that wind up getting jail. On the other end of the spectrum, there are criminal defense attorneys that spend their entire careers taking on routine cases that never go to trial and avoid difficult cases or clients that may be facing jail. We do not shy away form cases where jail is a possibility and we have had excellent results keeping clients out of jail, and even out of prison, when the odds are against it. This is something that we have been able to do for individuals with bad criminal records or that are charged with offenses carrying life in prison.

13. Probation Violations & Motions to Modify Probation 

Probation Modification, Violations, Successful Completion: Once a person enters a plea of guilty or no-contest, or is found guilty after trial, or is placed on a special sentencing sentence (frequently mentioned HYTA, MCLA 333.7411, Delayed Sentencing), the court can place the individual on probation. The maximum term of probation that can be imposed for a misdemeanor is 2 years and 5 years for a felony. Upon successful completion of probation, the individual is discharged from the court system. If a person has been granted HYTA or MCLA 333.7411, the matter will be dismissed upon successful completion of probation. While on probation, a person may ask the court to modify the conditions. A request for probation modification can be made by having a attorney file a motion and scheduling a hearing before the sentencing judge originally assigned to the case. Any reasonable request can be stated in a motion to modify probation including: termination of further probation, reduction or termination of random testing, removal of no-contact order and request to allow travel. If a person violates any term of probation, the court will schedule a probation violation hearing. Since a person may be placed in jail or lose a special sentencing status (HYTA or MCLA 333.7411), the representation of an attorney specializing in criminal law is crucial at a probation violation hearing.

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