Articles Posted in Macomb County Criminal Defense Lawyer

COVID-19-Advocates-scaled

Attorney Joseph Campbell wearing personal protective equipment while advocating in 41A District Court of Shelby Township for a client facing life in prison amidst global coronavirus pandemic.

From Washington D.C. to Washington Township, MI, the global coronavirus outbreak has triggered a state of emergency response nationwide. On March 10, Michigan Governor Gretchen Whitmer announced the closure of all K–12 school buildings statewide until April 5. Then, on March 16, Michigan bars, restaurants, entertainment venues, and other businesses were ordered to partially close for two weeks. Thereafter, events and gatherings of more than 50 people were banned from March 17 – April 5. Finally on March 24, Executive Order No. 2020-21, a statewide stay-at-home order was issued until April 13 for all Michiganders, limiting all non-essential travel and discontinuing all non-essential business services and operations. Among other things, Executive Order No. 2020-21, Michigan’s ‘Stay Home, Stay Safe’ order directs all Michiganders to stay home except under very limited circumstances. 

Abdo Law encourages all Michigan residents to comply with the ‘Stay Home, Stay Safe’ order when leaving their residence, as failing to comply with Executive Order No. 2020-21 could result in a $500 fine and/or 90 days in jail for each violation. Pursuant to Section 14, a willful violation of the Order will result in a criminal misdemeanor.  Section 14 cites to MCL 10.33 and MCL 30.405(3), which state, respectively:

EMERGENCY POWERS OF GOVERNOR (EXCERPT)

Act 302 of 1945; 10.33 Violation; misdemeanor.

Sec. 3. The violation of any such orders, rules and regulations made in conformity with this act shall be punishable as a misdemeanor, where such order, rule or regulation states that the violation thereof shall constitute a misdemeanor.

– – – – –

EMERGENCY MANAGEMENT ACT (EXCERPT)

Act 390 of 1976

(3) A person who willfully disobeys or interferes with the implementation of a rule, order, or directive issued by the governor pursuant to this section is guilty of a misdemeanor.

– – – – –

What’s more, Michigan Attorney General Dana Nessel made a recent press release reminding residents that calls regarding failing to comply with the ‘Stay Home, Stay Safe’ order should go to local law enforcement. Michigan State Police and local police departments enforcement of complying with Executive Order No. 2020-21 have varied from asking drivers why they’re out in public to asking for proof of employment through an employee issued I.D. card, while other officers are going as far as following drivers to their stated location and citing criminal misdemeanors. On March 30, Michigan State Police stated via Twitter that they are not conducting random traffic stops and their troopers do not carry thermometers.

Over this past weekend, an unfortunate 1,000+ new confirmed coronavirus cases were reported in Michigan, with coronavirus cases now totaling 4,658 while our death toll has painfully risen to 111. Each of Metro Detroit’s tri-counties now has more than 500 coronavirus cases, with Wayne County at 938 cases, Oakland County at 1,018 cases, and Macomb County at 524 total cases.

Not much is clear at this point for the majority of Michiganders. We’ve been ordered to stay home. We’re even supposed to stay 6 feet away from those we live with. These are challenging times and every day is unprecedented. While we know the strength and grit of residents in Metro Detroit, we encourage community members to comply with our statewide stay-at-home order. COVID-19 does not discriminate and it is clearly deadly. Abdo Law respects and salutes Michigan’s first responders, grocers, and other critical infrastructure workers as they risk everything on a daily basis. Abdo Law asks individuals within Metro Detroit that maintain a healthy lifestyle to extend a helping hand for their neighbors with compromised conditions. Reach out and coordinate with elders in our community to retrieve grocery and other items necessary to sustain or protect their lives. 

Will Michigan families get together this Easter? If not together in person, will Easter dinner be shared with families over Facetime or Zoom together? We are optimistic while extent of impact and timeframe of COVID-19’s shutdown remains speculative for most of society. Undoubtedly, all persons throughout Michigan are impacted by the novel coronavirus. Listed below are helpful links and important exceptions to Executive Order No. 2020-21.

COVID-19, Centers for Disease Prevention and Control 

Michigan Executive Order 2020-21 (COVID-19)

Coronavirus – Critical Infrastructure Workers

Sunday, March 29: Latest developments on coronavirus in Michigan

 

Exceptions to Michigan’s ‘Stay Home, Stay Safe’ Executive Order No. 2020-21

  1. Individuals may leave their home or place of residence, and travel as necessary: 
  • To engage in outdoor activity, including walking, hiking, running, cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual’s household.
  • To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) may leave their home for work without a designation.)
  • To conduct minimum basic operations, as described in section 4(b), after being designated to perform such work by their employers.
  • To perform necessary government activities, as described in section 6.
  • To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).
  • To obtain necessary services or supplies for themselves, their family or household members, and their vehicles. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences.
  • To care for a family member or a family member’s pet in another household.
  • To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
  • To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
  • To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
  • To work or volunteer for businesses or operations (including both and religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
  • Individuals may also travel: 
  1. To return to a home or place of residence from outside this state. 
  2. To leave this state for a home or residence elsewhere.
  3. To travel between two residences in this state. 

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ABDO-LAW-CY-MATT-JOE-AT-41A

41A District, Shelby Township Division

Jurisdiction over Shelby Township, Macomb Township and Utica

Macomb County, the 586 County: 9 District Courts, Over 2,000 DUI Arrests in 2018 

From our experience, those finding themselves charged with operating a motor vehicle under the influence of drugs or alcohol (DUI/OWI), rarely fit the mold of someone that you would expect to get into trouble with the law. In many situations, our clients have responsible employment, solid relationships and lead healthy lifestyles. On the other extreme, we have represented those that admit to a substance abuse problem, use alcohol as a social lubricant after a recent breakup or divorce and/or are self-medicating to numb psychological disorders, relationship problems or a significant loss. Unfortunately, once in the court system, a person can be unfairly treated and characterized as a substance abuser because of an isolated episode of alcohol consumption and lack of knowledge of Michigan’s strict DUI laws. Whatever situation you are facing, we know that you didn’t intentionally set out to get charged with driving under the influence but consider yourself in the right place to get the straight facts if your case is in Macomb County. 

There are 83 counties in Michigan with Macomb County ranking third in population size behind Wayne County and Oakland County. The cities of Warren and Sterling Heights rank third and fourth in population size among Michigan cities. Macomb County is the “586” county and home to 9 district courts which covers a diverse population and contrasting regions from Eastpointe on the 8 Mile Road border to Romeo, a community dotted with apple orchards, rural charm. Others areas in Macomb County, such as Macomb Township, Shelby Township, Chesterfield Township and Washington Township, have seen explosive residential and commercial growth.

We have dedicated this  article to give you the big picture on the topic of driving under the influence (DUI/OWI) in Macomb County based upon our experience handling 1,000’s of DUI/OWI cases and because DUI/OWI cases are consistently one of the most prevalent criminal charges in the Macomb County district courts. The list below contains links to the district courts located in Macomb County:

Michigan State Police Keep Drunk Driving Statistics 

Although I have not officially counted, there are more laws, ordinances and administrative rules on the books for drunk driving than exist for murder, kidnapping and armed robbery combined! 

Since 1999, the Michigan State Police has kept track of DUI/OWI cases in every Michigan county. This data can be found online Michigan Drunk Driving Audit. In 2018, there were approximately 2,200 arrests for operating under the influence of alcohol or drugs in Macomb County. Here are the numbers of incidents (breath/blood tests) for select police agencies in Macomb County.

  • Macomb County Sheriff: 369
  • Warren: 198
  • St. Clair Shores: 162
  • Clinton Township: 156
  • Shelby Township: 155
  • Sterling Heights: 151
  • Chesterfield Township: 127
  • New Baltimore: 90
  • Roseville: 85
  • Utica: 72
  • Eastpointe: 66
  • Fraser: 50
  • Richmond: 35
  • Centerline: 18
  • Romeo: 11

A word about these numbers: These numbers represent the total of those tested for alcohol or drugs by a breath or blood test. The ultimate charge is dependent on the test result for alcohol (.08 or .17 or greater) or drugs, whether an injury/death occurred, the prior record of the offender and other factors. Surely you are feeling unlucky if you have been charged with DUI/OWI in one of these jurisdictions considering that several thousands of individuals drive under the influence of alcohol or drugs in Macomb County on any given weekend. The Macomb County Sheriff, which provides law enforcement in several major areas (Macomb Township, Harrison Township, Washington Township), sees the greatest number of OWI incidents within Macomb County. Lastly, geographic size alone does not determine OWI activity. For example, the City of Utica, with several bars, Jimmy John’s Field, restaurants and hotels crammed into a compact geographical area of 1.776 square miles, had 72 OWI incidents in 2018, compared with Sterling Heights (151 incidents) that is almost 20 times larger.

What do the abbreviations mean for OWI, OWVI, OUID & OWI High BAC?

You can expect to be hit with confusing legal jargon and abbreviations if you are charged with driving or operating under the influence. Over the years, drunk driving laws have evolved but some of the old abbreviations have survived and are still widely used to refer to a drunk driving offense.

  • OWI=Operating while intoxicated: This offense covers charges when a person has a blood alcohol content of .08% or greater which is abbreviated as OWI. The abbreviations of DUI and OUIL mean the same thing as an OWI but are from a generation of prior drunk driving laws.
  • OWVI=Operating while visibly impaired:  This is the offense which is a lower charge than OWI . OWI is often reduced to OWVI in the court system.
  • OWPD=Operating with the presence of a Schedule 1 controlled substance: As determined by a blood test.
  • OUID=Operating under the influence of drugs: Includes situations where someone is impaired by the use of prescription medications.
  • OWI with High BAC=Operating with a high blood alcohol content: This is also referred to as a “super drunk driving” and is charged when a person has a blood alcohol content of .17% or more. OWI with high BAC carries much higher criminal and driving penalties than OWI or OWVI. Most county prosecutors have a policy and do not reduce OWI with a high BAC without policy deviation granted.

Why did the police destroy my driver’s license?

Can I still drive with a temporary license?

When will I get my picture license back?

dui 257g

The following is a directive to law enforcement officers after placing someone under arrest for a DUI:

MCL 257.625g: On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

Once officially arrested for a drunk driving offense, the police will destroy the plastic driver’s license and issue a Michigan Temporary Driving Permit as seen above.  This permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, ticket or other notification, bond receipt and towing receipt. This Michigan Temporary Driving Permit will enable the person to continue to operate a vehicle without any restrictions. Any license restrictions or suspension will not be triggered by the Secretary of State until there is a finding of guilt for  OWI/Impaired . Upon conviction or finding of guilt, the Secretary of State will issue license action by mail to the last address of the offender. The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

There are mandatory license sanctions for every OWI offense. Upon conviction, these sanctions, or action, is imposed by the Secretary of State and the court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense.  Sobriety court may also save a repeat OWI/DUI offender from a mandatory license revocation.

Michigan Alcohol or Drug Crime License Action
First Offense OWI (.08 or greater)  30 days suspended, 150 days restricted
First Offense OUID (drugs)  30 days suspended, 150 days restricted
Second Offense within 7 Years Indefinite revocation (minimum 1 year)
Second Offense within 7 Years (Sobriety Court) 45 days suspended, 320 days restricted with BAIID
Third Offense within 10 Years Indefinite revocation 1 year to 5 years
Child Endangerment w/Child u/age 16 90 days suspended, 90 days restricted
Super Drunk (High BAC .17% or greater) 45 days suspended, 320 days restricted with BAIID
Impaired Driving (OWVI) 90 days restricted
Zero Tolerance, Under 21 w/.02% – .07% 30 days restricted
OWI/Causing Injury Indefinite revocation
OWI Causing Death Indefinite revocation
Other Felony Convictions w/Motor Vehicle Revocation or Suspension
First Offense Drug Crime  30 days suspended, 150 days restricted
Second Offense Drug Crime  60 days suspended, 305 days restricted

A person issued a restricted license  may operate a vehicle, to and from any combination of the following places:

  • In the course of the person’s employment/occupation.
  • The person’s residence.
  • The person’s workplace.
  • An alcohol, drug or mental health education treatment program as ordered by the court.
  • AA or NA meetings.
  • An educational institution at which the person is enrolled as a student.
  • A place of regularly occurring medical treatment for a serous condition or medical emergency of the person or a member of the person’s household.
  • An ignition interlock service provider (for those required to have a BAIID device).
  • The judge has discretion to permit a minor’s custodian to drive to a day care center or educational institutional where the child is enrolled.

An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Michigan Department of State. The process to regain driving privileges is known as a driver’s license restoration proceeding.

The Science of Blood Alcohol Content (BAC)

Shot, Beer, and Wine

Legal intoxication means the amount of alcohol contained in one’s blood (reported as a percentage) that will constitute drunk driving (operating while intoxicated). Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, a BAC of .08% or more is considered legal intoxication, regardless of actual intoxication. If a person has a BAC of .17% or greater, the charge to SUPER OWI or OWI with High BAC. A search warrant for a blood test may be obtained when a chemical test is refused or under circumstances where the police are seeking a blood test for drugs or marijuana. If the Secretary of State finds that the refusal was not reasonable, the offender’s license will be suspended for a one (1) year period pursuant to Michigan’s implied consent laws.

Drink/weight BAC index charts, such as the one below, are a fairly reliable source of information on the subject of blood alcohol content.

DUI BAC CHART MALE & FEMALE

 

Unfortunately, this whole process is technical, confusing and often catches people by surprise. Seniors citizens are especially vulnerable as they usually avoid alcoholic beverages because of medications or other age related health concerns. In addition, senior citizens, like most people, rarely understand their individual tolerances to alcohol and how much alcohol consumption is required to be legally intoxicated. The science of alcohol elimination from the body also plays a role in a person’s BAC. Just as alcohol is absorbed in a person’s blood over time, it is also eliminated. Although each person has a unique metabolism rate, it is estimated that alcohol is eliminated from the body at the rate of .015% per hour after hitting a peak BAC.  At this rate, it takes an estimated 70 to 90 minutes, or longer, for the human body to eliminate a single drink. A single drink = 1.5 oz. shot of 80 proof hard liquor, a 5 oz. glass of wine (12% alcohol) or a 12 ounce beer (5% alcohol).  See hours to zero chart below:

HOURS TO ZERO

Once behind the wheel of a car after consuming alcoholic beverages, ignorance of the law is not a excuse and the law enforcement officials do not discriminate even for those individuals that have never been in trouble.

Representing OWI Offenders in Macomb County

Getting charged with an OWI is a horrible ordeal. Being arrested and spending the night in jail is something that most of our clients have never experienced and don’t easily forget. Getting past these traumatic events requires an action plan by attorneys that specialize in handling  Macomb County drunk driving cases. There are different degrees of operating while intoxicated and various factors that can result in more serious criminal charges. A simple first offense OWI can turn into a “Super DUI” if the BAC is .17% or greater. Three lifetime offenses for operating under the influence is a felony that can carry five (5) years in prison. Our initial inquiry will usually consist of the following:

  • Prior record for driving under the influence and age of prior offenses.
  • Prior record for all other crimes, felonies and offenses involving alcohol and drugs.
  • Test results for alcohol, drugs.
  • Whether there was an accident involving property damage, injuries or death.
  • Was client cooperative with the police or involved in fleeing or resisting arrest.
  • Are any other charges being pursued such as fleeing, leaving scene of accident, driving while suspended.
  • Legal issues to explore: testing protocol, proof of operation, validity of traffic stop.

The Court Process in Macomb County

Drunk driving cases are crimes and the court process is governed by the rules of criminal procedure. A person charged with a crime is entitled to protection under the United States Constitution pursuant to the Bill of Rights. Whether it is a misdemeanor or felony drunk driving, the accused is entitled to discovery of all reports, test results, witness statements, accident reports and video/photographic evidence. In addition, the accused is entitled to a trial by jury. The following is a basic framework of the court process in Macomb County for OWI cases:

  • ARREST: Misdemeanor OWI: The accused is held in jail until BAC drops and then released with legal papers after posting a bond. Attorney can waive formal arraignment in court.
  • ARREST: Felony OWI: The accused is held in jail and appearance is required for formal arraignment before a judge or magistrate.
  • Arraignment: May be waived by attorney for misdemeanor OWI in most Macomb County Courts. An appearance is mandatory for felony OWI and an attorney’s presence is required. An attorney can often save a person from having to use the services of a bondsman. Upon arraignment, bond conditions are also imposed that testing and travel restrictions.
  • Blood Draw: The accused may be formally charged pending blood results or released and later charged when the blood test results are returned. It can take several weeks and sometimes months for blood tests to be returned.
  • Discovery: The process of obtaining all evidence in a criminal case. Discovery may also include an independent investigation, accident reconstruction, obtaining witness statements and obtaining independent analysis of breath or blood samples.
  • Pretrial Conference:pretrial conference is a meeting between the  defense attorney and the prosecutor. The majority of cases in Macomb County, 90% or more, are resolved after one or more pretrial conferences.
  • Probable Cause Conference/Preliminary Examination: Probable cause conference and preliminary examination are proceedings that are scheduled for crimes that are classified as felonies. Similar to a pretrial conference, a felony can be resolved at the probable cause conference stage of a criminal case.
  • Motions: When a judge is needed to address a matter before trial, a motion is filed to make the request. These requests are often necessary when the prosecutor will not dismiss a defective case or certain evidence should be admitted or excluded.
  • Plea Bargain: A plea bargain usually means that the original charge has been amended or reduced to something much more favorable. A plea bargain can occur at any stage of a criminal case even during a trial. The prosecutor will consult with any victim and arresting law enforcement officer to get approval for certain plea bargains. A plea bargain may fall apart if the victim or law enforcement officer do not
  • Trial: The prosecutor is required to prove the accused guilty beyond a reasonable doubt (this applies to all crimes and drunk driving).
  • Substance Abuse Evaluation and /or Presentence Report: A substance abuse evaluation is MANDATORY If the accused if found guilty or pleads guilty to operating while impaired or intoxicated. A presentence report is mandatory if convicted of any felony.
  • Sentencing Phase: At the sentence stage, the court will hear from the probation department, prosecutor, defense attorney, defendant and any victim that may be involved.

What about driving under the influence of marijuana?  

The question is whether someone can be charged with driving under the influence of marijuana since it i now legal in Michigan for medical  and recreational use. The answer to this question is YES.

Unlike drunk driving which has established legal limits (OWI = .08 or greater, Super OWI = .17 or greater) and equipment (breathalyzer) to measure an individual’s blood alcohol content (BAC), no such legal limits (THC nanogram levels) or testing instrument has been approved for marijuana. Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

Michigan laws are in a state of flux regarding the offense operating under the influence of marijuana.  The court system is left with different rules for those that have medical marijuana cards and those without. In general, the blood test results (THC nanogram levels) alone are insufficient to convict without other proof of impairment. There are a multitude of legal challenges that can be made in these cases especially when the blood test does not account for active THC or there is a lapse in time when marijuana was last used.

What can someone charged with an OWI expect in the Macomb Courts?

Getting a dismissal is a top priority in every criminal or drunk driving case. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request (for a reduction) or negotiating a plea bargain. Recent statistics indicate that approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. Our Macomb County district courts are no exception.  Plea bargaining can result in reduction in the charges as well as recommendations for leniency at the sentencing phase of the case.

The following are the most significant variables that come into play during negotiations (plea bargaining) and sentencing:  offender’s prior criminal and drunk driving record, test result scores and whether there was an accident. Being uncooperative with law enforcement officers during the arrest process can also be a negative barrier to negotiations and the final outcome of a criminal case.

In general, those with a bad record, have scored high on drug/alcohol tests and have been in accident (especially with an injury), will have a more challenging case than someone with a clean record, low test results and no accident.

-No prior record, no Accident, low BAC (under .16), no substance abuse problem, cooperative with police: I would call this best case scenario. A person charged in Macomb County with an OWI in this position is likely to get a reduction to “impaired driving” with a sentence as follows:

    • Fines/costs range from $900.00 to $1500.00, depending upon the court.
    • 1 year probation (a strong argument can be made for non-reporting probation.
    • Testing is likely in most Macomb County County courts.
    • Community service is unlikely in most Macomb County courts.
    • Attending some form of counseling is likely in most Most County courts (usually a short program consisting of 1-8 sessions).
    • Most Macomb County judges will consider modification of probation and testing requirements if there has been at least 6 months or more of compliance.

-Super OWI, High BAC (.17 or greater): Getting charged with OWI with a high blood alcohol content (BAC) of .17 or greater in Michigan means stiffer penalties and being labeled a “super drunk driver”. For whatever reason, we are seeing a greater number of clients charged with “super drunk driving”. In 2018, approximately 660 individuals were tested by  the police in Warren, Shelby Township, Sterling Heights and Clinton Township with 301 registering a BAC of .17 or greater. If convicted of “super drunk driving”, the offender is required to have a Breath Alcohol Ignition Interlock Device (BAIID) on any vehicle he or she intends to operate for a period of 320 days after serving out a 45 day driver’s license suspension with no driving privileges.

The challenge in High BAC cases is to get the charge reduced to an offense with a lesser stigma and penalties, such as OWVI (operating while impaired) and to convince the judge that our client does not have a drinking problem. You increase your chances of doing so by getting an attorney that knows the local court system and has experience handling super OWI cases in Macomb County. Unfortunately, an attorney that does not know the system or lacks experience can be a costly mistake.

-OWI Second Offense within 7 Years: Along with possibility of jail, a second offender faces mandatory license revocation upon being convicted of a second drinking and driving offense within a period of 7 years or a third conviction within a 10 year period. There are NO driving privileges allowed during a period of revocation. For those facing license revocation, driving privileges can be saved if the person is accepted in a Sobriety Court program. The Sobriety Court program allows eligible individuals convicted of certain drunk driving offenses to obtain a restricted driver license with installation of an ignition interlock device (BAIID) on vehicles they drive and own. There are Sobriety Court programs in Clinton Township, Roseville and Warren and other courts that are in the process of getting grants for these programs. You may be eligible to apply for Sobriety Court in one of these courts if you are charged with an OWI second offense in a court that does not have a Sobriety Court program.

-FELONY, Third Lifetime Offense Operating While Intoxicated or Impaired: A person convicted of OWI with two prior offenses in his or her lifetime faces the following penalties:

  • $500 to $5,000 fine, and either of the following:
    • 1 to 5 years imprisonment
    • Probation, with 30 days to 1 year in jail.
  • 60 to 180 days community service.
  • Driver’s license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years).
  • License plate confiscation.
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited.
  • Possible vehicle forfeiture.
  • Vehicle registration denial.
  • 6 points added to the offender’s driving record.

You may think the odds are against you if you are charged with an OWI 3rd (felony) but that is not necessarily the case. If you find yourself in this position, you need to a solid action plan for the best chance to get the felony dropped down to a misdemeanor in the court system. In avoiding a felony, our clients have been able to avoid jail, retain their right to own firearms, retain driving privileges, retain valuable career licenses and not be labeled a felon!

Fighting for non-reporting probation, no testing, a limited counseling program (1 day class) and other leniency are realistic goals for individuals that qualify as isolated offenders and do not display a problem with alcohol.

Collateral Consequences of a OWI Conviction

  • CPL rights: A person convicted of a drunk driving offense (either OWI or impaired driving) will lose CPL rights for 3 years. There are no exceptions to this rule.
  • Felon may not Possess a firearm: A person convicted of a felony many not own or possess a firearm pursuant to both Federal and State of Michigan laws. Possession of a firearm by a felon constitutes a felony punishable by up too 10 years in prison.
  • Canada inadmissibility:  Based upon Canadian immigration laws, a person that has been convicted of driving while impaired by alcohol or drugs will probably be found criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.
  • Police response costs:  In recent years, the costs incurred by the responding police agency are subject to collection for a person charged with a drinking and driving offense. I have seen these costs run anywhere from $300.00 to $600.00.
  • Expungement: The process of expungement (setting aside a conviction) is controlled by rigid rules in Michigan. Unfortunately, all traffic and drunk driving cases are ineligible for expungement. There are no exceptions to this rule.

Can a drunk driving case ever be completely dismissed?

I am sure you are wondering whether a drunk driving can be completely dismissed. There are various legal avenues that can be pursued which may result in a dismissal, major reduction or not guilty verdict of a drunk driving case which include: filing a deviation request, filing a motion to dismiss and/or proceeding to a trial.

Deviation request:  A deviation request is a formal request with supportive material to seek a favorable outcome when the policy of the prosecutor otherwise is against any plea bargain. Our firm utilizes deviation requests extensively in our criminal and drunk driving cases when a client has several positive factors and we feel that the prosecutor will consider a compassionate outcome.

Motion to Dismiss:  Many cases can be won prior to trial with a properly drafted and researched motion to dismiss. A motion to dismiss can be filed for a number of reasons including:

  • Suppression of test results (failure to follow protocol in the testing process).
  • Failure to establish an element of the crime (such as operation of the motor vehicle, parked vehicle).
  • Invalid traffic stop.

A motion to dismiss may also result in a plea bargain when the prosecutor does not want to run the risk of holding a hearing on a motion to dismiss.

Trial: Any person accused of a crime, including drunk driving offense, is afforded the right to a trial by the 6th Amendment to the United States Constitution. A trial may be held before a judge or jury. The judge or jury  is required to return a verdict of not guilty unless the case is proven beyond a reasonable doubt.

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IMG-5033-1

 

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).

Felony Representation Introduction

Our attorneys have handled OVER 10,000 criminal cases since 1980. Many of those cases qualified as felony offenses. Without a doubt, we know that being accused or charged with a felony can be a life changing event.

The Difference Between Misdemeanors and Felonies

In Michigan, and according to federal law, a felony is considered a crime of high seriousness punishable by imprisonment in excess of one (1) year up to life in prison. If punishable by exactly one year or less, it is classified as a misdemeanor. However, Michigan laws contain certain offenses which are known as “high court misdemeanors” that can carry up to two (2) years imprisonment. While a high court misdemeanor looks better than a felony, it is treated as a felony under federal law and has felony implications under state law.

Clients Charged with Felonies Rarely Fit the Profile of a “Felon” or Criminal

Misunderstandings, false accusations and unintended conduct can lead to serious felony charges. In addition, ignorance of law is not a defense in a criminal prosecution. For example, we have represented clients charged with felonies in all of the following scenarios:

  • Malicious Destruction: Key scratching a car where the victim alleges $1,000.00 or more in damage
  • Felony Drug Possession: Being in possession of drug residue or an innocent passenger in a vehicle where drugs are found.
  • Maintaining a Drug House: When drugs are found in your home or property that you long forgot about or that someone else left behind.
  • Uttering & Publishing: Preparing a check that does not belong to you even though the amount involved is nominal.
  • Receiving Stolen Property: Being an innocent stolen property.
  • Assault with a Deadly Weapon: Raising an object during an argument (assault with a deadly weapon)
  • Possession of Child Porn: Accidental or intentional downloading of inappropriate images (child port)
  • CSC 4th Degree: Touching someone who claims it was a sexual contact even though not intended to be (CSC 4th Degree)
  • Drunk Driving Felony: Being charged with Felony DUI because of 2 or more prior offenses that occurred in your lifetime, even 30 years ago
  • Fleeing and Eluding: Failing to stop when signaled by a police officer to do so.
  • Resisting and Obstructing: Resisting a lawful arrest or failing to comply with a demand by a law enforcement officer.
  • Strangulation: Engaging in a struggle with another and doing an act that “impedes normal breathing” can constitute a felony known as “Assault by Strangulation” punishable by up to 10 years in prison.

Any felony offense is a serious matter. However, most of our clients finding themselves charged with a felony do not fit the profile of a criminal and have not engaged in extreme or outrageous conduct. In fact, in our publication which covers the topic of Michigan’s most frequently charged felonies, we explain that marginal conduct, such as being in possession of drug residue which not capable of being used or measured, can result in serious felony charges that can lead to a conviction! If you find yourself in this predicament, do not waste time thinking that you can handle it yourself. Saying the wrong thing to a detective may put you in a worse position without you even knowing that you did so. Fortunately, a skilled criminal defense lawyer can manage most of the above mentioned matters where a felony does not go on your record, jail is not imposed and in some cases get the charge dismissed under special provisions of Michigan law (HYTA for youthful offenders age 17-23, MCL 333.7411 for first time possession of drugs, MCL 771.1 delayed sentence). Deals under these provisions can be limited based upon the age of the offender and/or the past criminal history of the offender. However, a past criminal history does not automatically rule out a favorble plea bargain in the criminal justice system. A consultation with an attorney is often necessary to find the right strategy for each person and each unique case.

Getting an Experienced Local Attorney is the Best Fit in Most Criminal Matters: Hiring a Lawyer Does Not Make You Look Guilty!!

Contrary to what the police might suggest to you if you are being accused of a crime; hiring a lawyer does not make you look guilty. Putting the shoe on the other foot, if a cop were facing criminal accusations, you can bet that he or she would “lawyer up” faster than the speed of light. 

An experienced criminal defense lawyer is able to explain the court proceedings and set realistic goals and provide a fairly accurate prediction regarding the outcome of the case. Getting a local attorney within the county where the offense occurred is a good start. Local attorneys with experience that know the courts, the prosecutors and the police are the best fit to give predictions regarding the outcome of a criminal case and answer questions such as:

  • Is jail a possibility?
  • Can a felony record be avoided?
  • Can the felony be reduced to a lower offense or misdemeanor?
  • What terms of probation is the judge likely to impose?
  • Will I have a criminal record?
  • Should I cooperate with the police (aka: snitch, act as an informant)?
  • Do I have to talk to the police if I am contacted by the police?
  • Do I have to take a polygraph (especially when it comes to sex crimes)?
  • How much will an attorney cost?
  • How bad is it for someone with a prior criminal record?
  • What can happen if there is a warrant for my arrest?
  • How much will bond cost?
  • What is involved if the case goes to trial?
  • Can the case be dismissed completely?

Cooperation, Police Interviews: Don’t be fooled into thinking that you have all of the answers to these questions because your best friend is taking a criminal justice class or because you have a friend that is  police officer. Each case and client is unique and the answers to these questions depend upon the individual circumstances involved. For example, we are generally against cooperation (becoming an informant) when a client is not comfortable doing undercover work or can otherwise get a good deal in the court system with an attorney standing up for his rights. An experienced criminal defense lawyer can also make recommendations regarding interviews with the police and polygraph examinations. Interviews with the police are a potential trap when one is not well prepared. In most cases, the police expect the accused party to deny the allegations.  The police will use the interview for other purposes such as: establish relationships, place the accused at the crime scene, establish motives and size up the accused’s credibility.

Some Tips When You Hire a Criminal Defense Lawyer

Hiring a lawyer is not something that anyone wants to do. WE KNOW that choosing a lawyer can be overwhelming and bewildering. Here are a few practical tips that can lead to a prudent decision in hiring a qualified lawyer:

  • Does the lawyer specialize in criminal law? I would say that this is the number 1 criteria in hiring a criminal lawyer. The legal profession has moved away from the days when attorneys held themselves out to the public as “general practitioners”.  An attorney that splits his time handling practice areas outside of criminal law is rarely a good fit. Specialties exist in every area of the law such as estate planning, family law real estate and personal injury. There are hundreds of laws on the books just in the area of drunk driving alone and several thousands more covering other major practice areas.
  • How do you know if the attorney is any good? This is a tough question to answer. I have had to hire lawyers three (3) times for various non-criminal situations. The process of hiring an attorney for me was not easy. So, I realize that the decision to hire one lawyer versus another is not quite that simple.  You may have a good recommendation for a lawyer which eliminates the arduous search process for an attorney. Fortunately, the internet has become a major resource of information, ratings and reviews  about lawyers if you do not have a recommendation.  If the lawyer is well represented on the internet (credible reviews, informative website, ratings by reputable services), or if you have a good impression after speaking to the lawyer or representatives of the law firm on the phone, you next should consider scheduling a first consultation to meet the lawyer face to face. Always ask if there is any fee for the first consultation. Most attorneys, including our firm, offer a free first consultation.
  • Are attorney ratings and reviews accurate? There is no easy answer to this question. Let me start out by saying that there are lousy attorneys that have excellent ratings and reviews and there are excellent attorneys with awful ratings and reviews. There are also attorneys that do not have an internet presence, do not seek reviews and just don’t want them for whatever reasons. Ratings and reviews need to be taken in stride. How do you really know if the reviews are from real clients are just harvested from the family and friends of the attorney? For example, you should be suspicious if an attorney has 100 reviews but is his fairly new to the business or has only been licensed for a short time.  The best thing to do is to read the reviews carefully. How far back do the reviews go? Are they consistent? Are they detailed or do they seem hyped or spurious? In addition to reviews, there are a number of organizations that provide ratings of attorneys. The oldest rating organization and most credible is Martindale Hubbell which has been in existence since 1868. The highest Martindale Hubbell rating is PREEMINENT, followed by DISTINGUISHED and then followed by NOTABLE. Other rating systems are utilized by AVVO and Yelp.
  • What if the attorney has had a grievance? Anyone can file an attorney grievance against an attorney. Criminal lawyers face the most grievances because of the nature of the business and because clients will find faults with the lawyer when the case does not go as planned. The State Bar does not take action for the vast majority of grievances filed.  However, the State Bar can take disciplinary action against an attorney for major violations, such as commission of a crime, or minor violations, such as failing to communicate with a client. An attorney with a history of grievances may not be a good fit. On the other hand, just because the State Bar has taken action against an attorney does not mean that the attorney is ineffective or unqualified. Like reviews and ratings, you will need to decide whether an attorney with a prior grievance should be avoided or considered for representation.
  • Do attorneys really give phone consultations? Yes, some attorneys, not all, will discuss your case on the telephone or provide internet “chat” discussions. Phone consultations can be a good starting place in the search for a lawyer.  However, there are limitations to the amount of time and advice that can be provided on the telephone or in chat discussion scenarios. Our firm offers phone consultations subject to time constraints and other realistic considerations. In our phone consultations, we like to obtain the most pressing information: Brief client history (drugs, marriage, employment, children), Nature of the charges, Court where the case will be heard, Prior lifetime record of the accused party, Name and phone number of the detective, Whether the accused party has posted bond or is in jail.
  • What should I expect at the first consultation?  The first meeting with an attorney is an excellent opportunity to get an initial impression about the attorney, the office and the staff. For complex criminal cases, there are limitations as to the extent of time and advice that can be dispensed at your first meeting. At the very least, your attorney should be able to cover any pressing matters (acting as an informant, making a statement to the police, forfeiture of assets, setting up an arraignment, quoting a fee, visiting the client in jail). Once hired, the attorney will order your police report and dig further into the underlying case which will facilitate preparation of a solid defense.  For routine matters, an attorney is likely able to provide a thorough analysis of the case from beginning to end with coverage of: the expected outcome, whether there will be a criminal record at the conclusion of the case, the likely terms of sentence (jail/probation), the approximate fines and costs and whether there is any chance of getting the matter dismissed, reduced or amended.
  • How much will it cost to hire a lawyer for criminal case? Lawyers have several ways that they charge for their services. We have adopted a fixed flat fee policy to handle just about every type of criminal, drunk driving and traffic case. The fixed flat fee arrangement means that an exact cost is charged for legal services thus eliminating the mystery associated with hourly rates and other vague fee agreements.  Hourly rates on the other hand can be intimidating especially when an attorney cannot give a prediction or estimate as to how much time/hours the entire case will entail. In addition, attorneys that bill on an hourly basis do so for every phone call, text message, email and while they are driving to court and waiting in courtroom for the case to be called. Attorney fees will also depend upon the prior criminal history of the client, the seriousness of the offense, the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the time limitations imposed by the client or by the circumstances and the experience, reputation, and ability of the lawyer or lawyers performing the services.
  • Who is responsible for out of pocket costs and expenses associated with my case? Sometimes it is necessary to employ outside resources/services to assist in the defense of a criminal case.  The costs or expenses that are paid to outside parties for their services are referred to as out of pocket costs. Out of pocket costs are always the responsibility of the client and all attorneys will seek reimbursement accordingly. The following are examples of out of pocket costs: employing a private investigator to obtain witness statements, forensic analysis of evidence, expert witnesses, private polygraph examination and extensive costs associated with discovery, copies and postage.
  • Should I get a court appointed lawyer? The Right to Counsel in criminal proceedings is guaranteed by the 6th Amendment to the United States Constitution. Should you be charged with a crime and unable to afford an attorney, the court will appoint an attorney to provide representation. Some attorneys are willing to accept court appointed cases. You do not get to choose your court appointed attorney. The court will select an attorney from a list or the matter will be referred to Macomb County Judicial Aide for handling.

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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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