Articles Posted in Sentencing

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In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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Westland District.jpgThe intention of this post is to give you a brief overview of what to expect if you are being charged with Operating While Intoxicated (OWI) arising out of the 18th District Court in the City of Westland. The 18th District Court is presided over by the Honorable Judges Sandra Ference Cicirelli and Mark A. McConnell. Based on our firm’s experience, the 18th District Court will treat you fairly and your case will be handled efficiently. By treated “fairly”, we mean that if you are a first offender whose OWI is reduced to the lower offense of Operating While Visibly Impaired (OWVI), the Court’s sentence will be reasonable as I will explain. When I say that a first offense will be handled “efficiently”, we mean that your case can be handled in 1 court appearance if it is resolved by way of plea bargaining under certain circumstances. However, if motions are filed or your case is scheduled for trial, there will be other necessary proceedings. This blog will focus on the vast majority of cases which are resolved by way of a plea bargain.

When charged with a crime, our firm will consider all of the evidence and make recommendations to our clients as to the best course of action. In reality, the vast majority of criminal offenses and drunk driving cases are resolved by means of plea bargaining. When representing a client charged with an OWI who does not have a good case for trial, our law firm typically has three goals;

-Get the charge reduced, typically to an “Operating While Visibly Impaired” (colloquially referred to as an “OWVI” or simply an “Impaired”);

-Avoid jail time; and
-Minimize the length, terms and conditions of probation.

Discussed in other blog posts, most drunk driving cases do not make great cases for trial. Presumptive evidence of intoxication is established by a valid traffic stop, failed roadside sobriety tests, and Blood Alcohol Content (BAC) results of .08% or greater. For that reason, we usually fight to secure the lesser charge of Impaired Driving and seek recommendations from the prosecuting authority for sentence leniency. The merits of the Impaired Driving charge have also been discussed at length in our previous blog posts. Generally, an OWI which is reduced to OWVI is less points, saves our clients $1,000.00 in driver responsibility fees, involves a shorter period of action against one’s license and does not involve any mandatory period of license suspension before issuance of a restricted license.

In most other courts, the process to resolve a drinking and driving offense requires at least 3 court appearances which include pretrial conference, substance abuse assessment and sentencing. However, the 18th District Court will endeavor to handle the entire case on the same date. It is our experience that getting to the 18th District Court by 8:00 a.m., knowing our Client’s case and being prepared to advocate with the prosecutor are essential for a case to be resolved in the efficient manner which I have described compared to cases which languish for several months and require multiple stressful Court appearances.

At the time of sentencing, the Court will determine the extent and terms of probation along with fines and costs. The maximum term of probation for a first offense Impaired Driving is 2 years. In our experience, first time offenders for Impaired Driving should expect 12 months probation in the 18th District Court. Probation may be reporting (to a probation officer) or non-reporting. Non-reporting probation is preferred and is less intrusive upon one’s daily routine. The 18th District Court will normally allow time to pay fines and costs. However, in a recent case handled by our firm, the Court said that our client’s reporting probation will be converted to non-reporting probation after payment of fines and costs.
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You should read the series in the Detroit Free which began on July 24, 2011 pertaining to drunk driving laws and sentencing in Michigan especially if you are someone that has a few drinks before operating a motor vehicle in the Metro Detroit area. In Michigan, a conviction for drunk driving can occur if the offender’s blood alcohol content is .08% or greater, regardless of intoxication. The prosecutor is only required to prove that the offender had operated a vehicle with an illegal blood alcohol content. Ignorance of the law is not a defense. In addition, it is not a defense to a drunk driving case that the offender was sober or able to operate his vehicle safely.

I can say the articles are long overdue which warn offenders that jail is a possible consequence in some jurisdictions for a first offense involving drunk driving (DUI). The articles also cover the financial side of drinking and driving which can run up to $10,000.00 after factoring in attorney fees, fines, court costs, financial responsibility fees, substance abuse counseling and motor vehicle insurance.

On July 24, 2011, the Detroit Free Press reported that Arrest location could determine the outcome for a drunken-driving penalty.” As a criminal defense attorney with representative cases in Macomb and Oakland Counties, I can say that this article touches a nerve with the criminal defense bar. The article fairly depicts Judge Kim Small (48th District Court, Oakland County) as a Judge that will invariably impose at least 2 weeks in jail for a first offender convicted of drinking and driving. In contrast, Judges in Clinton Township (Macomb County) and Clarkston (Oakland County) agree that jail is not always the answer and will use substance abuse counseling extensively when someone is convicted of drinking and driving. In my experience, the imposition of jail is reserved by most Judges for offenders who violate probation or commit repeat offenses. Judge Small is not in this camp.

There is really no way to say if Judge Small is motivated by politics or really believes that she is doing the right thing when she gives a first time offender jail for impaired driving. (See Detroit Free Press article on July 25, 2011, Oakland County judge among toughest in nation on 1st-time drunken driving offenders.” On the political side, she presides in one of the highest net worth jurisdictions in the United States. Her voters may believe that she is keeping them safe and preserving their property values by taking a tough stance on drinking and driving. On the other hand, many of the individuals sentenced in her Court are residents in the community where she presides. Clearly, she gains no votes or political advantage by incarcerating her own constituents.

You would be hard pressed to find any criminal defense attorney that is in favor of strict uniform sentencing that fails to consider the unique case facts and circumstances of the individual who is convicted of a criminal or drinking and driving offense. At least one attorney is quoted in the Detroit Free Press article who will not represent clients who are charged with drunk driving in Judge Small’s court.

The real question is whether Michigan should adopt uniform sentencing for offenders convicted of drunk driving. While Michigan has adopted Sentencing Guidelines for felony cases, there are no such guidelines for misdemeanors. The Sentence Guidelines take an offenders prior criminal record along with aggravating/mitigating offense variables into consideration. In addition, the Michigan Sentence Guidelines provide that a Judge may depart from the guidelines sentence range only where there are substantial and compelling reasons to do so. The Michigan Sentence Guidelines favor individualized sentencing with some limitations and confines.

The very nature of the legal system in the United States depends upon fairness and due process, not strict liability, uniform sentencing or mandatory jail for drinking and driving convictions. A private criminal defense lawyer remains the only advocate for the rights of the accused versus the vast financial resources and manpower of the government to prosecute an individual. The very idea of uniform sentencing puts more power in the hands of the government and lawmakers and removes power from individuals and their private attorneys.
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In Michigan, probation cannot exceed 2 years for misdemeanors and 5 years for felonies. Probation is determined at the time of sentencing and may include a component of incarceration. For example, our firm recently represented someone who was convicted of a felony, drunk driving third offense. The offender had 6 total drinking and driving convictions on his record and faced 1-5 years in prison. The Court was persuaded by the defendant’s employment and decision to begin a substance abuse treatment program. The defendant was sentenced to 2 years probation with the first 30 days in jail the Macomb County Jail; the minimum period of incarceration allowed by Michigan statute for felony drunk driving.

The least restrictive type of probation is called non-reporting or unsupervised. This means that the Defendant must be on good behavior during a period of probation and will be discharged at the end of probation provided the person does not violate any criminal laws. In addition, the Court may attach some conditions with non-reporting probation such as not leaving the State of Michigan without approval and attending an appropriate program (AA meetings or anger management).

Probation may also be supervised or reporting. The Court has broad power to place limitations and restrictions on otherwise legal behavior for a person who gets probation. For example, someone placed on probation may be prohibited from entering into a strip club or from using a computer. The image which is attached to this page is a copy of the probation conditions which are possible in Macomb County. Failure to abide by any of these provisions can result in termination of probation and incarceration.

Some counties, including Oakland and Ingham, employ a program known as Operation Nighthawk to monitor the behavior of those who are placed on probation. Operation Nighthawk is a program whereby probation officers along with law enforcement officers randomly visit probationers, usually after hours, to verify compliance. In an article which appears in the Ingham County Legal News, 55th District Court Judge says, “Unannounced sweeps by our probation office with local law enforcement officers are the backbone of Operation Nighthawk. NIGHTHAWK encourages probationers to follow their probation orders.”
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500_1188330532_533138_45768535[1].jpgOnce arrested, a person charged with domestic violence will be held in jail, usually about 10 to 20 hours. Upon release, the person may have to post a bond which will be held by the court.

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

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

A Macomb County resident was recently sentenced to serve 9-15 years in prison after pleading no contest to charges stemming from a drinking and driving hit and run which caused the death of a pedestrian. The defendant plead no contest to failing to stop at the scene of an accident, manslaughter with a motor vehicle and operating a motor vehicle while impaired causing a death. The charges of manslaughter with a motor vehicle and operating a motor vehicle while impaired causing a death carry a maximum of 15 years in prison. However, the defendant avoided a second degree murder case which could carry up to life in prison.

The case arises out of an incident which occurred on May 9, 2010. A man who left Gino’s Surf in Harrison Township struck a pedestrial walking along the side of the road. The accident was not reported until approximately 12 hours after the accident. Based upon the information provided, the police eventually found the victim in a ditch where the driver said he thought the accident occurred.

When the driver voluntarily turned himself in at the Macomb County Sheriff’s Department, he did not have any alcohol in his system according to an article in the Macomb Daily on July 14, 2010. However, the Macomb Prosecutor’s office was prepared to present witnesses who could testify as to the driver’s intoxication when he left Gino’s.

There is a major provision of the Michigan Controlled Substance Act which is a vital tool for Michigan criminal attorneys representing drug offenders. The law is found at MCL 333.7411, also known as “7411” and applies only to persons charged with possession of marijuana, analogues or controlled substances. The law does not apply to persons charged with delivery, manufacturing, selling or trafficking drugs. Our Macomb county criminal defense attorneys have negotiated 7411 for numerous clients charged with “possession” drug crimes in the Michigan criminal courts which has the end result of a dismissal.

Sentencing pursuant to the Michigan Controlled Substance Act pursuant to 7411, allows for a first time offender involving “possession” of marijuana, analogues or controlled substances, such as heroin or cocaine, to have the proceedings deferred without entering a judgment of guilt. The probation terms will require that the offender comply with certain conditions including: remaining drug free, attending counseling and random testing. Upon compliance, the court shall discharge the individual and dismiss the proceedings. There may be only one lifetime discharge and dismissal under this section.

A criminal defense attorney can negotiate a 7411 plea at various stages of a criminal case. For misdemeanor drug crimes, 7411 is negotiated at the district court. However, in felony cases involving possession of drugs like cocaine, it is handled at the circuit court.

If you have never been involved in the Michigan criminal system, you may not be aware of the plethora of conditions that may be imposed if you are placed on probation. First of all, you may be placed on probation immediately after sentencing or upon release from jail. Your Judge will advise you at the time of sentencing as to whether you will be placed on probation. A person convicted of a crime in Michigan, including Macomb County Courts, can be placed on probation for a maximum of 2 years for a misdemeanor and 5 years for a felony conviction. Your rights will be limited while you are in the system during a term of probation. You may not be allowed to do things that would otherwise be legal if you were not on probation. If you violate a condition of probation, even if the condition is an otherwise legal act (like drinking or traveling out of state), you are subject to re-sentencing and face the balance of any jail which has not been served with respect to the underlying case.

Here is a list of possible conditions that may be ordered and imposed with respect to probation:

  1. Do not leave the state of Michigan without approval from the court.
  2. You may not drink alcohol or go to places where alcohol is served.
  3. You may not be in the company of others who have a felony record or that are co-defendants in your case.
  4. You may not be allowed to use or have a computer in your residence (for sex crimes, identity theft or cyber predators).
  5. A curfew may be imposed.
  6. You may be placed on house arrest with electronic monitoring.
  7. You may be ordered to wear a sobriety/drug monitor.
  8. You may be ordered to be registered and monitored by Global Positioning Satellites.
  9. You may be ordered to pay restitution to any victims of your crime.
  10. You may be ordered to stay away from any victims.
  11. You may be ordered to attend counseling, parenting classes, AA, anger management or be placed in-patient.
  12. You may have non-reporting probation or have supervised probation and be required to report weekly or monthly, in the discretion of the court.
  13. You may be required to provide random alcohol or drug samples at such frequency as directed by the court or probation agent.
  14. You will not be allowed to possess a firearm if you are convicted of a felony during your probation or thereafter. Possession of a firearm by a convicted felon is a felony!

A criminal defense attorney should be proactive at the time of sentencing and attempt to minimize terms of probation where compliance is difficult or not appropriate. For example, a recent client needed to travel out of state for his employment. Our office made a request for out of state travel at the time of sentence. The Judge granted the request based upon our argument that the person needed minimal supervision and was not a flight or community risk.