Articles Posted in Uncategorized


old-county-bldg

Juvenile Division of the Macomb County Circuit Court

The Macomb County Juvenile Court is located at the Old Macomb County Building at 10 North Main, Mt. Clemens, Michigan 48043: Most matters are heard at this building before a referee. 

Juvenile delinquency cases are akin to criminal cases in the adult system.  When a minor (age 16 or under) is charged with a crime (Michigan Penal Code), the case will be referred to Juvenile Court in the county where the child resides; not to the adult criminal courts. If found guilty, the juvenile may not be placed in adult prison.  The main focus of this publication will pertain to “juvenile delinquency cases” with emphasis on our firm’s experience in the Juvenile Division of the Macomb County Circuit Court.

The Juvenile Division of the Macomb County Circuit Court is located at 10 North Main, Mt. Clemens, Michigan 48043.  When a case is filed, it is assigned to one of the referees.  The job of a referee involves working with the attorney, the juvenile, the family, the prosecutor, the case worker and the victim. In our experience, more than 90% of all juvenile cases are resolved at this level. Depending upon the circumstances and the prior record of the offender, there are a variety of resolutions that are possible in the juvenile system. Diversion and consent calendar are extremely favorable proceedings which do not result in any finding of ‘guilt’ and the charge(s) are eventually dismissed.  A juvenile that enters a plea of guilty or is found guilty faces a range of dispositions that are suited for the particular individual such as: probation, house arrest, drug testing, counseling and in extreme cases detention. Referees may also conduct trials if agreed upon by the juvenile defense attorney, prosecutor and referee. The juvenile also has a constitutional right to have a jury trial. In Macomb County, jury trials are held at the Macomb County Circuit Court Building before the Circuit Court Judge assigned to the case.

Crimes by Persons Age 16 or Younger Treated as Juveniles

  • Age 16 and younger: Generally, someone under age 17 who commits a crime is treated as a “juvenile”. Juvenile cases which involve criminal activity are referred to as delinquency cases and are handled in the juvenile court. In certain cases, a juvenile case may be waived to the adult criminal court. Juvenile offenders may also be eligible for a dismissal of the offense depending upon the circumstances.
  • Waiver of juveniles to adult criminal court: Pursuant to MCL 712A.4, upon motion by the prosecuting attorney and a hearing before the court, a juvenile 14 years of age or older, accused of a felony, may be tried as though he or she were an adult. The statute further provides: “the court shall conduct a hearing to determine if the best interests of the juvenile and the public would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction.”  In making its determination, the court shall consider several factors, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency than to the other criteria.
  • Age 17 and older: At age 17 and beyond, a person is treated as an adult for his or her criminal conduct. In our website, we explain the availability of HYTA for offenders that are age 17 but under age 24. HYTA is a status that is negotiated which can result in an offense being dismissed and the record forever sealed.

More Drug Crimes, Sex Crimes & False Bomb/Terrorism Threats

Our Macomb County defense attorneys have seen an increase in juvenile delinquency cases for crimes involving drugs, sexual activity and false bomb/terrorism threats.  Protecting our children from the outside world is becoming more difficult than ever.  Juveniles are faced with many forces of distraction and temptation.  Hard street drugs, marijuana and addictive prescribed medications are easily obtainable. In addition, the internet and cable television allows our children to access pornography and negative programming which shapes their values about sexuality and violence.  Juveniles that are unpopular or impulsive may use social media to post threatening messages that can result in serious criminal charges; false threats of terrorism/bomb threats.

Drug crimes, sex crimes and false threats of terrorism are all cases that are potentially manageable in the juvenile system.  Depending upon the circumstances, we may recommend a psychological profile to rule out predatory or violent behavior.  For cases involving false threats of terrorism/bomb threats, we always ask for character letters from family members, neighbors, teachers and members of the community that can attest to the positive qualities and good nature of our juvenile client.

Cases Involving Allegations of Sex Crimes against Juveniles

The lives of every family member is torn apart and turned upside down when a loved one is accused with a sex crime. A juvenile may be charged with a sex crime for possession of sexual images, transferring sexual images (sexting) or inappropriate behavior with a family member or non-family member.  The age of consent in Michigan is 16 for sexual activity. Therefore,  consent is not a defense to a sex crime when the victim is age 15 or younger under any circumstances, even if the victim lied about her age!

When a juvenile is accused of an inappropriate sexual incident, the parents are typically first notified by a detective.  The detective may have received a complaint from an individual or from a party under a duty to report the incident such as a physician, counselor or school personnel.  Once notified that a juvenile is accused of a sex crime, there are many steps that can be taken to prepare the juvenile and the juvenile’s family for action by the police, Child Protective Services intervention and juvenile court proceedings.

We believe in proactive management of cases when a juvenile is accused or charged with a sex crime. Our juvenile sex crime plan may include the following:

  • Advising the family and juvenile of constitutional right to remain silent (discussed below).
  • Cleaning up social media pages, cell phones (discussed below).
  • Advising the family and juvenile to refer any matters relating the allegations to their attorney.
  • Advising the family and juvenile regarding a strategy to deal with Child Protective Services.
  • Advising the family and juvenile regarding a strategy to deal with the law enforcement agency conducting an investigation.
  • Advising the family and juvenile regarding polygraph examinations.
  • Advising the family and juvenile regarding the Macomb County Juvenile Court Intake Process.
  • Sex specific psychological profile and counseling services to rule out predatory tendencies or future risk to others.
  • Sex specific and psychological counseling services for juveniles that have an underlying problem.
  • What to do if the alleged offense involves another minor child in the household.
  • Identifying cases that may be based upon lies by the alleged victim.
  • Taking an approach to avoid a sex-crime and the Sex Offender Registry (SORA)

How would you deal with any of the above legal and personal issues? Getting a lawyer as soon as you learn of an investigation can make a huge difference in the ultimate result of a juvenile sex crime case and help you regain your sanity.

Police May Attempt to Obtain a Confession

Prior to the issuance of a petition within the Macomb County Juvenile Court, the police may attempt to obtain a confession or statement from the juvenile suspect. The juvenile has all of the rights as an adult and would be urged to remain silent until an attorney can be secured. An attorney can often make recommendations as to whether or not cooperation with the police is an appropriate course of action. It may not always be plausible to have an attorney on hand when the police confront a juvenile since the police prefer to catch a suspect off balance.

 Juvenile Cases Begin with a Police Report and a Petition

 If criminal activity of a juvenile is brought to the attention of the police or authorities, a report is generated and submitted to the prosecutor. If the conduct of the juvenile supports a criminal offense, the prosecuting attorney can file a petition in the juvenile court. In Macomb County, juvenile cases are evaluated by the Macomb County Prosecutor’s Office. If the petition is approved, the juvenile may be detained pending an arraignment.

Juvenile Cases are Filed in the County Where the Juvenile Resides

Unlike adult criminal cases which are filed in the jurisdiction where the offense occurred, juvenile cases are filed in the county where the juvenile resides. Thus a juvenile that is a resident of Shelby Township, Sterling Heights or Washington Township would have his or her case heard in the Macomb County Juvenile Court even if the alleged criminal offense occurred outside of Macomb County.

Right to Jury Trial

The juvenile is entitled to a trial if a case is not resolved by other attempts.  Trials may be heard by the referee or by the Judge that is assigned to the case. However, the juvenile in a delinquency matter has a right to a jury trial pursuant to the United States Constitution. Trials in the juvenile system are handled pursuant to the Michigan Rules of Evidence.

Text Messaging, Photographs and Social Media Sites May Be Incriminating

Upon being retained, we will advise our juvenile clients to refrain from drawing any negative attention. By this, we may insist that our client refrain from texting or posting anything on social networks such as Facebook or Instagram. In addition, we may advise our client to remove any incriminating or unbecoming photographs which are posted on the internet. We may even recommend that our client shut down any social media internet sites while under investigation or the subject of a delinquency case.

Resolution of Juvenile Cases: Dismissals, Avoiding Felony Record, Avoiding Sex Crime

The juvenile court system is similar to the adult criminal system when fashioning a resolution. There are several variables that the prosecutor, probation officer and court will take in to consideration:

  • Any prior juvenile record (convictions or prior petitions in the court system)
  • The school, home and community record of the juvenile.
  • Whether the juvenile is incorrigible and/or habitually truant.
  • Whether the juvenile is addicted to drugs or alcohol and not responding to treatment.
  • Whether the juvenile has violent propensities or is a sexual predator.
  • The juvenile’s steps towards improvement during the pendency of the underlying case.
  • Whether the existing home is suitable for the juvenile to improve.

Dispositions: A juvenile that scores negatively with the court system can wind up in the youth home or face long term placement. Conversely, the Macomb Juvenile Court system is one that will consider community supervision (probation) and positive dispositions such as:

  • Diversion whereby a conviction is never entered and the case is eventually dismissed.
  • Consent Calendar with probation and dismissal upon compliance.
  • Avoiding a felony conviction.
  • Avoiding a conviction for a crime of dishonesty (larceny) or violence (assault).
  • Avoiding a sex crime conviction.
  • Avoiding the Sex Offender Registry.
  • Setting up a plea bargain for future expungement.

Continue Reading

detroit-police
Detroit Experiencing Vast Economic Growth: Destination for 4.3 Million Metro Detroiters, Canadians and Tourists

The 36th District Court is by far the busiest district court in the State of Michigan. It has a single location at 421 Madison, Detroit, Michigan 48226. There are 30 judges at this location that have demanding criminal, drunk driving and traffic dockets.

The City of Detroit is amid major economic growth.   Detroit’s growth includes a real estate boom, renovations of historic structures, updated infrastructures and housing developments.  The downtown area and surrounding neighborhoods are experiencing an influx in population which is likely to continue for several years to come.  The City of Detroit is also attracting visitors from the Metro-Detroit suburbs (4.3 million), Canada and other regions to places like the Eastern Market, Greektown, Midtown, Little Caesars Arena, Fox Theatre, Belle Isle, museums, casinos, festivals, concerts and restaurants.  In addition, all of Detroit’s 4 professional sports teams (Tigers, Lions, Red Wings, Pistons) now have stadiums in downtown Detroit.

District-Courts-Macomb-Map

MACOMB COUNTY DISTRICT COURT MAP 

The 42-1 District Court is located at 14133 33 Mile Road, Romeo Michigan 48065

The 42-1 District Court’s physical jurisdiction covers 180 square miles in northerly Macomb County which includes the City of Romeo, Washington Township, Armada, Richmond, Memphis, Ray Township and Bruce Township. The 42-1 District Court, also called the ‘Romeo Court’ has jurisdiction over more land mass in Macomb County than any other district court. Judge Dennis Leduc is the presiding judge of the 42-1 District Court. The 42-2 District Court, also known as the ‘New Baltimore Court‘, covers the remainder of the 42nd District.

Here are a few things that you should know if you are charged with a DUI, traffic ticket or criminal charge in the Romeo Court:

  • All fines and costs are due on the date of sentence with few exceptions.
  • Alcohol and drug testing is used extensively.
  • All DUI cases are referred for a substance abuse evaluation.
  • Most criminal cases require a probation interview prior to sentencing.
  • Drug crimes and other crimes will be considered for deferrals where dismissals can be earned after a period of probation. This is discussed in more detail below.

There are several police agencies within the 42-1 District Court jurisdiction. The Macomb County Sheriff’s Department has the largest presence in the northerly region of Macomb County. Other law enforcement agencies within this jurisdiction include the Romeo Police, Richmond Police and the Michigan State Police North Post.

The northerly region of Macomb County, is a blend of rural and suburban living. It is also experiencing economic expansion at every level. Expansion is most notable in Washington Township which is on the southerly border of the 42-1 District.  The very essence of expansion equates to an increase in population, retail development and added traffic volume.

Criminal Cases in the 42-1 District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 42nd District Courts in Romeo and New Baltimore. The following is list of some of the most prevalent cases that we regularly see on the 42-1 District Court docket:

 The 42-1 District is a conservative district.  Judge Leduc runs a tight ship and his Court is run very efficiently.  Judge Leduc likes to see the presence of family members in the courtroom and will ask for their input regarding those that appear before him.

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 42-1 District Court, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 42-1 District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

  • Prior criminal history of the accused party.
  • Cooperation with the police.
  • Whether another party was injured, or property was damaged.
  • The ability of the accused party to provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children

We have utilized each of these special provisions of law in the 42-1 District Court which can result in a dismissal of a criminal matter:

Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 42-1 District Court

1st offense drinking and driving:  For most first time drinking and driving (and drugged while driving) offenders, jail is not likely absent some other aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense.

Repeat DUI Offender: A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time.  There are many steps that we can recommend to those charged with a repeat offense to reduce the likelihood of incarceration in almost every Macomb County court.

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. We evaluate every DUI 3rd for opportunities to get it reduced to a misdemeanor by filing strategic legal motions, negotiations and filing a deviation request.

The 42-1 District Court Probation Department: 14133 33 Mile Road, Romeo Michigan 48065

The 42-1 District Court has its own probation department located in the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first-time offenders.

Traffic Violations in the 42-1 District Court: Reduced to Avoid Points and Record of any Conviction!

Several police agencies have an active presence monitoring the activity of vehicular traffic within the jurisdiction of the 42-1 District Court.  Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 42-1 District Court. When resolving a traffic matter in the 42-1 District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

Court Personnel are Forbidden to Give Legal Advice: Yet most courts are making it easier than ever to just pay your traffic ticket by visiting the court’s website and giving offenders the convenient option to pay by credit card.  What they won’t tell you on their website is that you will get points on your driving record and that you may will wind up with higher insurance premiums for several years. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer. The path of least resistance, paying the ticket, can be much costlier in the long run.

Continue Reading

bigstock-Happy-celebrating-winning-succ-45658090.jpg
You may be eligible for restoration of your license if it has been revoked for multiple DUI offenses or for a felony involving the use of motor vehicle!

2017 has been a another year of victories for ABDO LAW clients that have had hearings before the the Driver License Appeal Division (DLAD). This year alone we have won 80 – 90% of our cases (we are still waiting on some results) on behalf of clients whose driver’s license was revoked for multiple DUI cases or for conviction of a felony driving offense (DUI causing injury or death). Losing your license can be a very embarrassing and demoralizing process. You either have to inconvenience others for rides, or risk driving with a suspended or revoked license and getting hit with a DWLS. With a DWLS conviction, you face jail and have to wait at least another year until you can get your license back. Oftentimes, people who have had their license revoked find themselves unable to find work or advance in a career. Other times, it is just a stinging reminder of a person’s past they are working hard to forget. We truly understand and identify with these concerns; we discuss them with our license clients every day. Our Firm specializes in and excels at license cases, it is a special area in our law practice where we can actually make our clients’ lives better. There is nothing more rewarding than to bring the process full circle by helping a client restore their full driving privileges.

We will give you advice to improve your license restoration appeal

detroit-police-night-photo
The offense of offer to engage the services of another for any act of prostitution, or solicitation of a prostitute, carries a mandatory 45 days in jail pursuant to City of Detroit Ordinances. The act of offer to engage, or OTE as it is commonly known, occurs when there is the offer of money for a sexual act. The ‘offer’ may occur by a direct request of a sexual act for a specified payment, by asking the question ‘how much” for a specified act or by kidding around with the undercover officer impersonating a prostitute.

That’s right, the City of Detroit has an ongoing sting operation whereby undercover female police officers, impersonating prostitutes, are strategically situated in areas of known prostitution. The female police officers, or decoys, are wired for audio which allows out of view law enforcement officers to hear the conversation between the decoy and the unsuspecting party. The unsuspecting party is typically operating a motor vehicle in the area and feels that it is safe to stop and talk to the decoy. Once there is any mention, or even a suggestion, of money for sex, a police vehicle will close in, place the unsuspecting party under arrest for OTE and seize any motor vehicle involved during the commission of the offense (See Vehicle Seizure Unit, Wayne County Prosecutor). The underlying criminal case for OTE will be handled as a separate matter in the 36th District Court.

The Detroit Ordinance: Offer to Engage or Solicit for Any Act of Prostitution

RECKLESS v OWI IMAGE
Reckless Driving is a crime, does not require an accident of any kind and is comparable in many respects to a drunk driving

As a policy, our Firm does not use ‘scare tactics’ to get your attention.  On the contrary, our aim is to inform our website traffic visitors regarding legal topics in our areas of expertise.  In this article, we will provide information regarding the criminal traffic offense of Reckless Driving based upon our experience in the Macomb County District Courts (37th District Court in Warren, 38th District Court in Eastpointe, 39th District Court in Roseville, 40th District Court in St. Clair Shores, 41-A District Court in Sterling Heights and Shelby Township, 41-B District Court in Clinton Township, 42-1 District Court in Romeo, 42-2 District Court in New Baltimore) and explain why it is as serious (see above graph) as a drunk driving – OWI.

Reckless Driving is a six (6) point criminal offense. Six (6) points is the greatest number of points that can be assessed for any traffic or criminal violation within the Michigan Motor Vehicle Code! Other 6 point offenses include Negligent Homicide*, Leaving the Scene of Accident, and Fleeing or Eluding a Police Officer. Reckless Driving carries more points than the offenses of Operating While Visibly Impaired, Drag Racing or the civil infraction of Careless Driving.

clinton twp police

In Michigan, the offense of leaving the scene of an accident (aka: failing to give identification at the scene of a crash) is charged as a crime. Leaving the scene of an accident is often abbreviated by the police and on Macomb County court notices and dockets as LSPDA or FTSA  for property damage accidents or LSPIA for personal injury accidents. Once an offense for LSPDA, FTSA or LSPIA is on a person’s record, it can never be expunged and can jeopardize personal rights (right to travel into Canada, right to obtain a concealed permit to carry a handgun/CPL). Although we have actively represented clients charged with traffic crimes and tickets in every Macomb County District Court, much of the information in this publication is based upon our extensive experience handling leaving the scene of accident tickets in the 37th District Court in Warren, 38th District Court in Eastpointe, 39th District Court in Roseville/Fraser, 40th District Court in St. Clair Shores, 41-A District Court in Sterling Heights and Shelby Township/Macomb/Utica, 41-B District Court in Clinton Township/Mount Clemens/Harrison Township, 42-1 District Court in Romeo/Washington Township, 42-2 District Court in New Baltimore/Chesterfiled Township.

A ticket for leaving the scene of an accident is a serious offense which has mandatory Secretary of State penalties, a range of court penalties and an inevitable impact on insurance premiums. Pleading guilty to the offense of leaving the scene of an accident without a lawyer is a sure way to wind up with regrets in the future. Leaving the scene of accident tickets can be negotiated in the court system to lower offenses and less severe consequences. However, the court system will treat individuals harsher for leaving the scene of a personal injury accident or, as I have heard it called, leaving a man down.

Penalties for leaving the scene of an accident involving property damage or a personal injury

42nd-District-Court-Division-1-Romeo-Lawyer-Attorney-2
Retail fraud is the formal criminal charge when a person is caught shoplifting in Michigan.  Although the information in this publication is relevant to our retail fraud practice in Macomb County, I would say that the vast majority of the retail fraud cases that we handle in the 42-1 District Court occur at the Meijer store located in Washington Township on the northeast corner of  26 Mile and Van Dyke. Most of those that we see facing retail fraud charges in this jurisdiction are first time offenders or those with a minor prior criminal record which we try to discount in the court system. The age of a person does not have any barriers for those who commit the offense of retail fraud. Our firm has represented individuals that qualify as juveniles (under age 17) as well as senior citizens. Some reasons associated with the conduct of retail fraud are financial distress, psychological issues, substance abuse, recent loss of a loved one, PTSD, adjustment to medications and peer pressure.  However, I would say that isolated impulsive behavior is the number one reason that a person commits an act of retail fraud.  

Retail fraud may be charged as a misdemeanor or felony

Retail fraud can be charged as a misdemeanor or felony depending upon the value of the property involved. Here is how the State of Michigan breaks it down in the Michigan Penal Code:

Macomb-County-Sheriff-car-jpg_834905_ver1.0_1280_720

 

 

 

 

 

Drunk driving is charged as a crime; not a traffic violation. From our experience, first offenders finding themselves in this position rarely fit the mold of someone that you would expect to get into trouble with the law. On the contrary, most clients that we see charged under Michigan’s drunk driving laws are victims of unexpected circumstances that they never anticipated. In many cases, they lack a recent experience or episode with alcohol consumption and underestimate its effects.

Some of the questions that will be covered in this article are:

  • Will I lose my license if I am convicted of a drunk driving?
  • Will I go to jail?
  • Can the police obtain a search warrant and force me to take a blood test if I refuse the breath test?
  • How long does it take for alcohol to be eliminated from my body after consumption?
  • What will happen to my right to obtain or maintain my Concealed Pistol License (CPL)?
  • Can I cross the border into Canada if I am convicted of a DUI?
  • Can a drunk driving case ever be dismissed?
  • What is a deviation request?
  • Can I still drive on a temporary license and when will I get my picture license back?
  • Can I be charged with DUI-marijuana?
  • Do police like making DUI arrests?
  • See Link: How do I find information about Sobriety Court?
  • Can a drunk driving offense ever get expunged?

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!

The court process is foreign and frightening to most individuals that are charged with a drunk driving offense. I have written this article to provide updated information on the topic of drunk driving, provide answers to frequent questions and dispel any myths or rumors that may haunt individuals in this predicament. I have no doubt that those seeking information regarding drunk driving ranks consistently high as a popular topic considering that recent information compiled by the Michigan State Police in its annual drunk driving audit indicates that Macomb County and Oakland County made approximately 6700 combined drunk driving arrests in 2015! Arrests  by the Macomb Sheriff Department (217), Shelby Township Police (162), Sterling Heights Police (164) and Warren Police (190), top the list for DUI arrests made by Macomb County police agencies. (MSP 2015 drunk driving audit).

What do the abbreviations mean for OWI, DUI, OUIL, OWVI, OUID, OWPD, OWI High BAC?

I would like to reduce  some of the confusion that exists regarding the use of abbreviations in relation to drunk driving offenses in the legal system.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 affected 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 a drinking and driving offense (or other offense as listed below). 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.  As I state in various parts of this article and in our website, license action is mandatory and is imposed by the State of Michigan, not the court system. The court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense.  However, the court does have the power to grant license restrictions for certain drug crimes involving possession or use when restrictions are otherwise allowed by statute.  Sobriety court may also save a repeat DUI offender from a mandatory license revocation.

Michigan Alcohol or Drug Crime License Action
OWI/Impaired Causing Death Indefinite revocation
OWI/Impaired Causing Serious Injury Indefinite revocation
1st Offense OWI or OWPD 30 days suspended, 150 days restricted
2 OWI/Impaired in 7 year period Indefinite revocation (sobriety court is a possibility to get restrictions with BAIID)
3 OWI/Impaired in 10 year period Indefinite revocation 1 year to 5 years before eligible for license appeal
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
1st Offense Possession Drugs/Marijuana 30 days suspended, 150 days restricted
2nd Offense Possession Drugs/Marijuana 60 days suspended, 305 days restricted
1st Offense Minor in Possession of Alcohol No action
2nd Offense Minor in Possession of Alcohol 30 days suspended, 160 restricted

An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Driver Appeal and Assessment Division of the Michigan Department of State. Any tickets obtained during a period of revocation will result in an additional period of revocation of one (1) year or possibly more.

Some facts about our first offender clients facing a drunk driving

Here are some of our findings regarding a majority of first offender clients, or nearly first offenders, that get hit with a drunk driving:

  • Does not have any prior drunk driving history or may have a DUI offense from many years ago.
  • Does not usually consume alcohol in excess.
  • Was cooperative with the police.
  • Is caught driving within a few miles from home, usually in the late evening hours.
  • Has a good driving record.
  • Was not involved in an accident.

Alcohol consumption issues, blood alcohol content, search warrant for blood, elimination of alcohol over time

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 legally intoxicated, regardless of actual intoxication. 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 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.

Drunk driving basics

The term drunk driving as used in this article means criminal charges for:

  • Super Drunk Driving: Operating with a high BAC (BAC .17% or more)
  • Operating while intoxicated / OWI (BAC .08% or more)
  • Operating while under the influence of drugs (including prescription meds)
  • Operating while impaired

Our website contains detailed information, including license sanctions, for each of the above offenses.  An ignition interlock device (BAIID) is mandatory for persons convicted of super drunk driving but also may be imposed as a sentencing condition for other drinking and driving offenses!  All of the above offenses contain mandatory state of Michigan sanctions. The State of Michigan sanctions include: license suspension/restrictions, driver’s responsibility fees and points. In addition to mandatory State of Michigan sanctions, a person convicted of any of the above offenses is subject to numerous court sanctions upon sentencing. Most court sanctions are discretionary and may include one or more of the following:

  • Incarceration
  • Probation for up to 2 years
  • Fine and court costs
  • Mandatory alcohol assessment
  • Imposition of substance abuse program, attendance of AA meeetings, in-patient care
  • Imposition of random alcohol and/or drug testing, or require a transdermal testing monitor
  • Community service
  • Restrictions on travel out-of-state
  • Restrictions on consumption of alcohol
  • Imposition of ignition interlock device on motor vehicle (BAIID) as a condition

What about driving under the influence of marijuana?  Do police need a warrant to search my vehicle?

Michigan is way behind when it comes to the issue of marijuana. The main issue is whether marijuana will be legalized for recreational use. The response to that issue will be reserved for another article. For this article, the question is whether someone can be charged with driving under the influence of marijuana. The answer to this question is YES. However, we are not seeing many cases whereby a person is charged with DUI-marijuana. Instead, our firm has been retained for several cases in the Macomb County District Courts where the police opt to charge an operator of a vehicle (usually a youthful offender), along with the occupants, with possession of marijuana and/or paraphernalia and not OWI-marijuana.  I believe this to be the case because, unlike testing for alcohol (.08% = OWI), the State of Michigan lacks any standardized rules/testing for what constitutes being “under the influence” or impaired” by the consumption of marijuana. Another reason, in my opinion, is because police really do not like to make DUI arrests. A DUI arrest can keep a law enforcement officer off of the road for several hours. A DUI arrest entails compliance with several state laws as well as administrative rules in order to accomplish technical testing procedures, booking and incarceration of the offender and extensive document preparation (police report, temporary license, bond forms, etc.). 

Frequent possession of marijuana scenario, consent search: Search warrants are time consuming and there is rarely sufficient justification for the officer to obtain one after a routine traffic stop. However,  a search warrant is not required when the police find something in plain view, obtain consent to search or make a search incident to an arrest. This brings us to the typical scenario:  After pulling over a vehicle, or seeing one parked in a dark area, the police will confront the driver and occupant(s) and claim that they can smell marijuana. The police are skilled at getting information and can usually avoid the search warrant requirement by getting the occupants of the vehicle to surrender any marijuana or consent to a search.

For the offender, getting charged with the drug crime of possession of marijuana  or analogues is preferable to anything associated with a DUI and is usually resolved favorably in the Macomb County Courts with a dismissal under MCL 333.7411 or HYTA for youthful offenders (age 17 to 23).

It is another story entirely, and felony charges are likely, under circumstances whereby the operator of a vehicle tests positive for THC or other drugs and is involved in an accident causing the injury or death of another person. In this scenario, the defense attorney would obtain the blood test results and determine whether the marijuana usage was recent and examine the THC nanogram levels.

What can someone with a clean record expect?

I would assume that the answers to this question are the main reason that someone would read this article.  Getting a dismissal is a top priority in every criminal or drunk driving case. This lofty goal is not always attainable. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request or negotiating a plea bargain. Realistically, recent statistics indicate that approximately 90% or more of all criminal and drunk driving in the Untied 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. For every criminal and drunk driving case, the prosecutor, probation officer and the judge will look at the prior criminal record of the offender. Depending upon the circumstances, I am not usually concerned about an old criminal conviction from back in the 1970’s or 1980’s. However, recent prior criminal offenses may preclude an offer of a plea bargain in drunk driving cases without a formal deviation request. Other variables that are taken into consideration are:

  • Whether there was an accident
  • The prior traffic record of the offender
  • The blood alcohol content, high or low?
  • Whether there are any other egregious factors or criminal charges brought at the same time (fleeing the police, resisting arrest)
  • Whether the offender mixed alcohol with other drugs or medications

If an individual is charged with first offense operating while intoxicated (OWI), plea bargaining down to an impaired driving may be the best option.  For those charged with super drunk driving (.17% or more) or a repeat offense involving drinking and driving, a reduction to a lower drinking offense will take additional legal maneuvers  and possibly a deviation request as I describe further on in this article. Our firm will also ask a person charged with a super drunk driving or a repeat offense to obtain a substance abuse evaluation which we will eventually utilize at various stages of the court process including pretrial conference, probation interview and sentencing.

Ruling out any variables that grab the court’s attention, I can say that based upon our experience, first offenders are treated extremely fair in every Macomb County Court. Although I have listed several possible court sentencing sanctions in the prior paragraphs which represents the larger picture, our experience has been favorable to the extent that we can often avoid the harshest penalties. Again, the sanctions imposed by the State of Michigan (license sanctions, driver responsibility fees, points) are inescapable. Also, every court will invariably impose fines and court costs in the range of $800.00 to $1,500.00, depending upon the district court. Fines and costs in the 41-B District (Clinton Township) and 42-1 District (servicing Romeo, Washington Township) tend to be the highest while the 41-A District (with 2 locations servicing Shelby, Macomb, Utica and Sterling Heights) and the 42-2 District Court (servicing New Baltimore, Chesterfield Township) are on the lower side. In addition to fines and costs, a person with an otherwise clean record can expect some probation, an alcohol education/counseling program and possible random alcohol testing. 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.

Additional sanctions and consequences of a DUI conviction include:

  • 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.
  • 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. While we are able to get extremely serious crimes (drug dealing, felony assault, theft/embezzlement) expunged, traffiic and drunk driving cases are not eligible. Personally, I am critical of this absurd exception which is contained in the Michigan expungement statute. This exception is based in part to the fact that the drunk driving laws contain sentence enhancements for repeat lifetime offenses (lifetime DUI third = felony). Also, in my opinion, the insurance industry may have had some influence in this matter to keep tabs on drivers and adjust rates accordingly.
  • Insurance costs: A person convicted of any drinking and driving offense will ultimately be hit with increased insurance premiums for several years after the conviction. These higher insurance costs are in addition to hefty fines/costs imposed by the legal system, driver responsibility fees, police response costs, substance abuse evaluation and court imposed programs. Some individuals will be labeled “high risk” or terminated by their own insurance company following a DUI and will need to hunt for a coverage elsewhere.

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 a couple of legal avenues that can be pursued which may result in a dismissal or reduction of a drunk driving. Getting a not guilty verdict at trial is one way. The second way is by preparing and filing a deviation request with the prosecutor’s office assigned to the case.

Trial:  Anyone accused of a crime has the right to a trial. In drunk driving cases, there may be a question regarding the legality of the traffic stop or whether the police officer followed protocol in administering the BAC test for breath, urine or blood. Trial services will cost more money with every experienced drunk driving firm. In addition, there is no guarantee that a person will win at trial. Only after evaluating a case will an attorney be able to render an opinion as to whether there are good grounds for trial and make recommendations accordingly.

Deviation request:  A second way to obtain a dismissal is by filing a deviation request with the prosecutor’s office. 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 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. In addition to the prosecutor, the arresting officer’s consent is typically needed before a deviation request may be granted. For this reason, one of our first questions at an initial consultation for a drunk driving case is whether the client cooperated with the police.  In our experience, when a deviation request is granted, the drinking and driving charge is reduced to careless driving (a non-criminal offense) and probation conditions may also be imposed by the court.  Again, like trials, there is an additional expense to prepare and file a deviation request with no guarantee as to the outcome.

Drunk driving cases in Michigan (except felonies) are handled in the district courts

With the exception of felony drinking and driving cases, all misdemeanor drunk driving cases are handled to completion in the district courts. Felony drunk driving offenses (DUI third offense, DUI involving injury or death) are ultimately resolved in the higher court (Macomb County Circuit Court).  In limited circumstances, a Macomb County DUI third offense/felony can be negotiated downward to misdemeanor in the district court.

The Macomb County district courts, along with jurisdictions covered and internet links are as follows:

 

 

COP CAR
Since 2003, the State of Michigan collects Driver Responsibility Fees against driver’s when excessive points are abstracted on a person’s driving record (Category 1 Offenses). Fees are also collected for specific offenses, regardless of points (Category 2 Offenses). Drunk driving is an example of an offense categorized under Category 2.  For example, a person who is convicted for Operating While Intoxicated is required to pay $1,000.00 per year for 2 years for a total of $2,000.00. A conviction for the lower drinking and driving offense of “impaired driving” requires $500.00 per year for 2 years in fees.

These fees have been called a “death penalty for drivers” by State Rep. Joe Haveman (R-Holland). Haveman favors legislation which would phase out all driver responsibility fees and he has called the law a “cash grab” for the state at the expense of motorists, who can lose their license for non-payment.

Traffic tickets are handled in the district Courts. In the district courts where we appear frequently, including : 37th District (Warren/Centerline), 38th District (Eastpointe), 39th District (Roseville/Fraser), 40th District (St. Clair Shores), 41-A District (Sterling Heights, Shelby Township, Macomb Township, Utica), 41-B District (Clinton Township, Harrison Township, Mount Clemens), 42-1 District(Romeo/Washington Township), 42-2 District (New Baltimore/Chesterfield Township), 72nd District (Marine City/Port Huron Divisions), 44th District (Royal Oak), many individuals are driving without a license and without insurance. They just cannot afford all of costs associated with traffic tickets and Driver Responsibility Fees.