Articles Posted in Uncategorized

sheriff-macomb-county-c46c28c5-5603-4973-a912-9d5a38e2cc71

Leaving the scene of an accident is a crime in Michigan

The dos and don’ts if you are faced with hit and run for leaving the scene of an accident! 

A traffic crash is a traumatic event. Leaving the scene of an accident is a possible response if you have been in an accident and are afraid to stick around for one reason or another. We know that driving under the influence, without insurance or driving on a suspended license are just a few of the reasons for leaving the scene of an accident.

In Michigan, traffic offenses can be charged as civil infractions or as crimes. The offense of leaving the scene of an accident (aka: hit and run, failing to give identification at the scene of a crash) is charged as a crime in Michigan. Along with drunk driving, leaving the scene of an accident is also one of the most prevalent misdemeanor cases that is charged in the Macomb County District Courts. Leaving the scene of an accident is a serious crime that can carry jail, up to 2 years of probation, a fine, court costs and 6 points. Leaving the scene of an accident causing an injury is a more serious crime than one causing property damage. If you get convicted of leaving the scene of an accident a criminal record will be created. A criminal record can have many consequences including:

  • Being criminal inadmissible to enter Canada.
  • Lose your right to have a Concealed Pistol License (CPL).
  • Under certain circumstances, face deportation.

Let us explain what you should do if you have left the scene of an accident or if you are charged with leaving the scene of an accident. You should know that talking to the police without getting sound legal advice or pleading guilty without a lawyer are not your best options. In this publication, and others we explain why you should be proactive and that hiring a lawyer to fight every traffic ticket is a wise investment.

This publication is based upon our experience handling criminal cases, leaving the scene of an accident and traffic violations in the following Metro Detroit jurisdictions:

A driver’s duties following an accident

Pursuant to MCL 257.619, The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident with an individual or with another vehicle that is operated or attended by another individual shall do all of the following:

  1. Give his or her name and address, and the registration number of the vehicle he or she is operating, including the name and address of the owner, to a police officer, the individual struck, or the driver or occupants of the vehicle with which he or she has collided.
  2. Exhibit his or her operator’s or chauffeur’s license to a police officer, individual struck, or the driver or occupants of the vehicle with which he or she has collided.
  3. Render to any individual injured in the accident reasonable assistance in securing medical aid or arrange for or provide transportation to any injured individual.

Failing to comply with these duties or failing to stop and give identification at the scene of a crash or leaving the scene of an accident can result in a criminal record, criminal penalties along with administrative sanctions by the Michigan Secretary of State.

Are you facing any of these scenarios?

Do not hesitate to hire a local attorney if you are facing any of these scenarios:

  • You have received a ticket for leaving the scene of an accident.
  • You have left the scene of an accident and sooner or later will be apprehended.
  • You have left your vehicle after an accident and do not know what to do.

An attorney will protect you from making the wrong moves with the police and your insurance company. Don’t be tempted to say that your car was stolen or make up some bogus story that will get you charged with a felony. Once you talk to the police, the police will get names of any witnesses and check out your story . Do you really want to implicate your friends and ask them to lie for you? The police will not tell you that you have a right to remain silent and a right to an attorney unless you have been placed in custody.

You just might not be guilty of anything if you were not aware that an accident occurred or remaining at the scene would have been harmful or obstructed traffic more than necessary.

Leaving the scene to avoid getting charged with drunk driving

It happens quite often when a person under the influence of alcohol or drugs and gets into an accident. A person leaves the scene of the accident believing it is far better to leave the scene than stick around and face drunk or drugged driving charges. The person may accomplish leaving the scene by driving away or by leaving a damaged vehcicle at the scene. This all becomes an extremely frustrating experience for the offender which often involves lying to family members, the police and the insurance company.  There are other reasons aside from operating while intoxicated that an individual may leave the scene. Other common reasons include driving with no insurance, driving while license suspended or because of an outstanding arrest warrant. Sometimes the individual is just alone and frightened.

Let us help you get your life under control if you have left the scene of an accident. DO NOT call the police and your insurance company and say that your car has been stolen. You will merely be exposing yourself to a felony charge for insurance fraud and filing a false felony report. Once you contact the police, you will asked for additional information that can be incriminating.

What to do if you are charged or have left the scene

If you have received a citation for leaving the scene of an accident, contact a lawyer for representation in the court system. If you are freaking out after leaving the scene of an accident and haven’t been caught yet, contact a lawyer to help you sort it out and establish a solid plan to address all of the following urgent matters:

  • Whether or not you should talk to the police.
  • Whether an insurance claim should be filed.
  • Getting your car out of the impound.
  • Dealing with the court system (arraignment, bond, pretrial conference, trial).

Let us explain the dos and don’ts if you are faced with any of the above scenarios:

  • DO retain an attorney to speak on your behalf.
  • DO get yourself cleaned up, sober and in  a better place if you intend to handle the matter with the police without a lawyer.
  • DON’T go home if you expect the police know your identity and your residential address.
  • DON’T make any statements to the police until you have consulted with a lawyer.
  • DON’T send any incriminating text messages to anyone.
  • DON’T say anything to your insurance agent until you have consulted with a lawyer.

There are ways for us to truthfully report the matter to the police without ever mentioning that our client was intoxicated the day before. Insurance fraud and filing a false police report are felonies. We will give you a solid plan to deal with the police, the insurance company and the court system without ever getting charged with a drunk driving or lying to the police! We consider it an emergency if you have left the scene of an accident, have not been home in several hours and do not have a clue what you should do next.

Penalties for leaving the scene of an accident 

Jail-time, losing your license, insurance issues and getting stuck in the court system for up to 2 years while on probation are all possible penalties for leaving the scene of an accident.

It is a crime to leave the scene of an accident pursuant to MCL 257.617a, which provides as follows:

  • 1. Leaving scene causing property damage: The driver of a vehicle who knows or who has reason to believe that he has been involved in an accident upon public or private property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of section 619 are fulfilled or immediately report the accident to the nearest or most convenient police agency or officer to fulfill the requirements of section 619(a) and (b) if there is a reasonable and honest belief that remaining at the scene will result in further harm. The stop shall be made without obstructing traffic more than is necessary.
  • 2. Leaving scene causing an injury: If an individual violates subsection (1) and the accident results in injury to any individual, the individual is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.

Leaving the scene of an injury accident

Leaving the scene of an accident may involve property damage, an injury to another person, or both. There are many factors that can make leaving the scene of an accident more serious. Leaving the scene of an accident involving only property damage with no injuries is a threshold case under the statute. If an injury is involved, the penalties are increased. If an injury occurs and alcohol or drugs are a factor, the offense is likely to be charged a felony, OWI causing an injury, which can carry up to five (5) years in prison. It is the job of an attorney to find ways to minimize the consequences of a more serious charge.

Restitution: Compensation to the victim(s)

Michigan’s restitution statute, MCL 769.1a, gives the court wide discretion to order reimbursement to any victim which arises out of the defendant’s criminal course of conduct.  The statute states as follows: when sentencing a defendant, the court shall order that the defendant make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate. Restitution can include compensation for property damage and injuries such as: collision costs or fair market value of property, medical expenses, cost of psychological treatment to the victim or member of victim’s family and child care!

Restitution can be ordered to be paid during a term of probation. Whenever it is attainable and it will help in negotiations or sentencing, we may encourage our client to pay restitution up front.

Driving off after accident, leaving disabled vehicle at the scene

When the police find a disabled or abandoned vehicle that was in an accident, they are automatically suspicious that the driver was drunk, left the scene to avoid being tested for alcohol and waited to claim the vehicle until after his or her alcohol levels dropped below the legal limit for OWI/DUI. The police will typically put a hold on the vehicle until it is claimed and a statement is made by the owner/driver. This is where an attorney comes in and can talk to the police for you, schedule an interview and arrange to get your car released. If damage is extensive, the vehicle may remain impounded until the insurance company adjusts the damage. DO NOT REPORT THE VEHICLE AS STOLEN! Contacting the police before retaining a lawyer in this scenario is a big mistake. It is far better to let your lawyer do damage control and do all of the talking rather than get caught lying to the police which can lead to other serious felony charges.

 

Continue reading ›

detroit-police

Detroit 

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 for entertainment and tourism from the suburbs, Canada, other states and countries. Places like the Eastern Market, Greektown, Midtown, Little Caesars Arena, Fox Theatre, Belle Isle, the DIA casinos, festivals, concerts and restaurants have become major attractions in the City of Detroit.  In addition, all of Detroit’s professional sports teams (Tigers, Lions, Red Wings, Pistons) have returned to downtown Detroit.

There are many dimensions to the City of Detroit. Detroit is known for its hard working and hard partying people. It is also a devoted sports town. Detroit is uniquely situated geographically with an international border shared with the Country of Canada which is divided by the Detroit River and accessible by crossing the Ambassador Bridge or Detroit/Windsor Tunnel . Detroit has 3 major casinos and hosts the International Auto Show each year.  The Covid-19 pandemic has been a game changer but Detroit has endured the worst pandemic ever is more vibrant than ever.

36th District Court is the busiest in Michigan

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.

36-district-image

Winding up in the 36th District Court can be an intimidating place without the guidance of an attorney. Dealing with security on the main floor, locating your court room and attempting to discuss your case with the prosecutor can be overwhelming and sometimes futile. By saying the wrong thing without proper representation, you could wind up having your case scheduled for jury trial and miss an opportunity to get out of the system.  If you find yourself in this position, getting experienced 36th District Court defense attorneys is crucial to navigate you through this major urban court system. Here are a few things that you should know up front about the 36th District Court:

  • Court employees and court officers are prohibited from giving any legal advice.
  • You are not allowed to bring your cell phone into the court building.
  • You will be required to appear for an arraignment and will be unable to make any progress without an attorney.
  • You will be required to appear for a pretrial conference if you are unable to resolve your case at the arraignment.
  • Your case will be handled by either the Wayne County Prosecutor or Detroit City Attorney for purpose of negotiations, plea bargaining and trial.
  • You will be required to pay all fines and costs on the date of your sentence.

Most prevalent crimes handled at the 36th District Court

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 36th District Court. The following is list of the most prevalent cases that we regularly see on 36th District Court’s docket:

What to expect at a bond hearing in the 36th District Court

If you are arrested or arraigned for a criminal matter in the 36th District Court, you will appear before either 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.

Crime classification: Misdemeanor or Felony

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.  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. 

Economic and property crimes: Larceny, embezzlement, retail fraud and malicious destruction of property to name a few, are all crimes where the classification (felony or misdemeanor) and potential punishment is dependent upon the amount of property loss. For most property crimes, if the amount involved in $1,000.00 or more, it is classified as felony.

Case results in the 36th District Court

The outcome of a criminal case in the 36th 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

All these special provisions of law are possible in the 36th District Court which can result in the ultimate 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.

Non-Resident or Canadian: If you reside outside of Michigan, consider getting an attorney that is experienced with the 36th District Court system and will provide you with efficient representation.

Drunk Driving Cases in the 36th District Court

Based upon 2016 statistics compiled by the Michigan State Police, the Detroit Police Precincts reported numerous drunk driving cases in the City of Detroit. Law enforcement in the City of Detroit is also provided by the Wayne County Sheriff’s Department and the Michigan State Police. There was a total of 11,903 injury crashes in Wayne County with 648 involving alcohol, drugs or a combination of alcohol and drugs. Another 183 fatality crashes were reported with 76 involving alcohol, drugs or a combination of alcohol and drugs.

1st offense drinking and driving:  For most first time drinking and driving offenders, jail is not likely absent some other aggravating circumstances in the 36th District Court. 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 for 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, not just a Super DUI.

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 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 ONLY 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. Click here for more information on felony procedure.

Continue reading ›

 

sheriff-macomb-county-c46c28c5-5603-4973-a912-9d5a38e2cc71

Read this publication to find out how YOU can avoid points and traffic offenses from being abstracted on your record!

Why is it wise to hire a lawyer and fight a traffic ticket?

If you look at only the cost of a traffic ticket ($150.00 to $180.00 for most civil infractions), you may think that it is cheaper just to pay it rather than hire a lawyer to fight it. The process to accept responsibility is made very easy and convenient by the government. On the face of the ticket, you will be given options to pay in person or on-line. In fact, according to the National Motorists Association statistics, only 5% of Americans contest their traffic tickets.  However, paying a traffic ticket without a fight will cost you far more in the long run.  Here are the major disadvantages to paying a ticket without trying to fight:

  • Higher insurance premiums for 3-5 years following the incident which are far greater than the cost of a lawyer.
  • Points appear and accumulate on your master driving record.
  • The prosecutor will consider tickets that appear on your record should you contest future tickets.
  • Employers may deny or limit your use of company vehicles.
  • Getting a ticket set aside after you admit responsibility is expensive and not guaranteed.

In this publication, authored by ABDO LAW, we explain why you should fight every traffic ticket and what outcomes can be expected in the court system. In addition, we describe how the insurance industry uses tickets against you to increase premiums for several years beyond the date of the ticket and why higher risk drivers (the young and elderly) should be especially diligent about their driving records. This publication is based upon our experience handling civil infractions and criminal traffic tickets for 1000’s of clients in every Macomb County district court.

What can an attorney do for me if I get a traffic ticket?

The path of least resistance, paying the ticket versus fighting it, is not economically logical. The best course of action is to fight every ticket with a skilled traffic defense lawyer. Having an attorney who knows how to negotiate traffic tickets can make a huge difference in the outcome as well as your household’s bottom line budget for the next 3-5 years. In our experience, we always leave the court system better off than we started. On a consistent basis, traffic tickets can be resolved with an advantageous outcome which will protect your driving record and save you hundreds, and sometimes thousands, of dollars per year.

Who benefits most if you pay your traffic ticket without a fight?

When you simply pay a traffic ticket without a fight, the government wins the battle because they get their full fee for the citation as originally written. However, insurance companies win the long-term war because they use the information placed on your master driving record by the government to rate and adjust your premiums for the next 3-5 years, depending on the citation.

Insurance companies use many factors to determine your insurance premiums including: your zip code, credit score, type of vehicle, and your driving record. Nerdwallet has a list of the cheapest vehicles to insure, with the Honda CR-V topping the list and several Toyota models in the top 25.

The insurance industry will use information on your driving record (accidents and tickets) and assign “insurance eligibility points” when you apply or renew your auto insurance. Insurance eligibility points are not the same as the points assessed by the Michigan Secretary of State. Insurance companies use their own point system for purpose of calculating your premiums and may deny coverage if you have more than six (6) eligibility points within the past 3 years.

Nobody from the auto insurance industry will tell you that you should hire a lawyer for every traffic ticket because it is not in their economic interest to do so. The insurance industry calculates your premiums and discounts based upon many factors with the heaviest weight placed upon your past driving record.  While your insurance company may give you a break for your first minor speeding ticket, you will not get a break for your second one or for a major traffic violation such as reckless driving (6 points), careless driving, (3 points), excessive speed violations, and several other traffic violations.

If you get a second ticket soon after paying your first ticket, getting a break in the court system is not a given. In fact, the best deals are preserved for those with the best records. You can assume that the prosecutor will have a copy of your driving record when you go to court. Some prosecutors may not make any plea bargain for those with bad records or may only offer a negligible concession.

The young and elderly take the biggest hit by just paying a ticket

As we have stated, your insurance premiums are based upon risk assessment. Unfortunately, young and elderly drivers are in the highest risk groups and face the biggest economic hits for traffic tickets. Risk rates are higher for all drivers 25 and under as well as drivers 70 and over. More than anyone, these groups need to be proactive and do everything possible to avoid getting traffic tickets and to fight any traffic tickets that occur.

What is the best resolution I can receive by fighting a traffic ticket? Avoiding points and entries on your driving record

If you have received a traffic ticket, the best outcome is a dismissal without court costs. A dismissal may occur several ways: winning at trial, the officer failing to appear for trial, or the prosecutor agreeing to this disposition. Since it is very rare for the prosecutor to agree to an outright dismissal and the outcome of a trial is uncertain, seeking a plea bargain is usually the best option for favorable resolutions of a traffic ticket. In fact, traffic tickets are similar to criminal cases and 90% or more are resolved by negotiating with the prosecutor for a plea bargain. Below is a list of the most common civil infraction violations:

  • Speeding 16-25 mph over – 4 points, 3 points on freeway
  • Speeding 11-15 mph over – 3 points, 2 points on freeway
  • Disobeyed Stop Sign – 3 points
  • Improper Passing – 3 points
  • Ran Red Light – 3 points
  • Failed to Yield – 2 points
  • Speeding 6-10 mph over – 2 points, 1 point on freeway

Short of a dismissal, the best outcome that one can hope for is to get a traffic ticket reduced down to a NON-POINT AND NON-ABSTRACTABLE offense. The Michigan Motor Vehicle Code contains certain offenses that do not carry any points and are not abstracted on your record. The offenses that we commonly utilize to avoid points and abstracted records are “IMPEDING TRAFFIC” and “DOUBLE PARKING”. We have obtained these best outcome dispositions in every Macomb County District Court. However, getting a best outcome disposition will still require you to pay an assessment of a fine, typically between $150.00 to $180.00., but these offenses will never appear on your record for insurance rating purposes.

Are traffic tickets considered criminal offenses?

In general, most traffic tickets are considered “civil infractions” and are not considered criminal offenses. However, Michigan law categorizes certain traffic offenses as criminal which not only carry points (go on your driving record), but also possible jail, probation and other and driving sanctions (suspension). Criminal traffic violations are usually, but not always, offenses that tend to be more extreme than minor traffic violations. They are abstracted on the driving record and permanent criminal record of the convicted party. Below is a list of the most prevalent criminal traffic violations:

  • Operating While Intoxicated – 6 points
  • Reckless Driving – 6 points
  • Leaving the scene of an accident – 6 points
  • Failed to Stop or Identify after Personal Injury Accident – 6 points
  • Fleeing and Eluding Officer – 6 points
  • Failure to Yield for Emergency Responder, 4 points
  • Drag Racing – 4 points
  • Passing a School Bus – 3 points
  • Disobeyed School Crossing Guard – 3 points
  • Driving While License Suspended – 2 points

Expungement forbidden for criminal traffic violations: While we have already explained the advantages of fighting a civil infraction, even greater benefits can be achieved by hiring a lawyer to fight a criminal traffic violation. These advantages include avoiding a criminal conviction on your record; not having to disclose criminal violations on applications for employment and education; excessive fees; insurance points; probation terms and conditions, as well as other license sanctions associated with a criminal traffic violation. Every day, we get phone calls from prospective clients asking if they can get their misdemeanor traffic violations expunged. Unfortunately, criminal traffic violations are may NOT be expunged.. Get a step ahead of the government by calling 844-GOT-ABDO.

CPL rights forfeited 3-8 years for criminal traffic violations: If avoiding all the economic burdens and lifestyle constraints described above is not enough justification to hire an attorney and fight your traffic ticket, then it should also be noted that your Concealed Pistol License (CPL) privileges and 2nd Amendment rights are curtailed after being convicted of certain criminal traffic violations in Michgan. For example, Michigan Concealed Pistol License Requirements state that you cannot apply for a CPL if you’ve been convicted of reckless driving in the last 8 years.

Fighting vs Paying a Traffic Ticket: Cost-Benefit Analysis

A single traffic ticket will negatively affect your master driving record and be used by the insurance industry to calculate your automotive premium for the next 3-5 years. According to Gary Biller, President of the National Motorists Association, if you have another traffic violation conviction within that 3-5 year time period, your insurance rates can boost another 15-20%.

With the average cost to hire an attorney and fight a traffic ticket ranging from $250 to $400, you’d see the return on your attorney investment within the first 6 months on your automotive insurance rates. The actual cost to fight your civil infraction or criminal traffic violation depends on several factors such as whether someone was injured, whether real or personal property was damaged, your master criminal and driving record, whether the vehicle was insured, whether you were cooperative with the arresting police officer, etc.

Continue reading ›

IMG_0795

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

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

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

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

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

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

Basic rules of self-defense

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

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

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

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

Be a student and practice the art of self-defense

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

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

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

Continue reading ›

4-RULES-OF-GUN-SAFETY

CPL Eligibility in Michigan

It’s a felony in Michigan to carry a concealed pistol on your person or in a motor vehicle without a CPL. However, if you meet the legal requirements, you are entitled to obtain a license to carry a concealed pistol (CPL). An applicant for a Michigan CPL must:

  1. Be at least 21 years of age.
  2. Be a citizen of the United States or an alien lawfully admitted into the United States.
  3. Be a legal resident of Michigan and reside in Michigan for at least six-months immediately prior to application.  An applicant is a resident of Michigan if one of the following applies: possesses a valid Michigan driver’s license or official personal identification card or is lawfully registered to vote in Michigan.

Note: The county clerk shall waive the six-month residency requirement: for an emergency license, if the applicant is a petitioner for a personal protection order or the county sheriff determines that there is clear and convincing evidence to believe that the safety of the applicant or the safety of a member of the applicant’s family or household is endangered by the applicant’s inability to immediately obtain a license to carry a concealed pistol.

  1. Successfully completing an appropriate pistol safety training course or class.
  2. Not be subject to an order or disposition for any of the following:
  • Involuntary hospitalization or involuntary alternative treatment.
  • Legal incapacitation.
  • Personal protection order.
  • Bond or conditional release prohibiting purchase or possession of a firearm.
  • Finding of not guilty by reason of insanity.
  1. Not be prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under MCL 750.224f.
  2. Have never been convicted of a felony in Michigan or elsewhere, and a felony charge against the applicant is not pending in Michigan or elsewhere at the time he or she applies for a CPL.
  3. Have not been dishonorably discharged from the United States Armed Forces.

Gun rights impacted by misdemeanor and felony convictions

 Pursuant to Michigan and federal law, you cannot own or possess any firearm (pistol or rifle) with any felony conviction. If you are charged with a felony, getting a felony criminal defense lawyer to fight the case is the key to preserving your Second Amendment rights. Misdemeanor convictions are a problem for a person trying to get a CPL. The right to obtain a CPL is denied 3 to 8 years upon conviction of selected misdemeanors.  Misdemeanor representation is crucial if you are charged with a misdemeanor under state law or local ordinance and you value your criminal record and/or CPL rights. There are many ways that a criminal defense lawyer can fight to save your record and gun rights. MCL

-8-year period of denial misdemeanors: A person convicted of any of the following common offenses is required to wait eight (8) years before applying for a CPL:

  • MCL 257.617a, failing to stop when involved in a personal injury accident
  • MCL 257.625, operating while intoxicated punishable as a second offense
  • MCL 257.626, reckless driving
  • MCL 257.904(1), DWLS punishable as a second offense
  • MCL 750.81, assault or domestic assault
  • MCL 750.81a(1) or (2), aggravated assault or aggravated domestic assault
  • MCL 750.115, breaking and entering or entering without breaking
  • MCL 750.136b(7), fourth-degree child abuse
  • MCL 750.226a, sale or possession of a switchblade
  • MCL 750.227c, improper transporting or possessing a loaded firearm in or upon a vehicle
  • MCL 750.232, failure to register the purchase of a firearm or a firearm component
  • MCL 750.232a, improperly obtaining a pistol, making a false statement on an application to purchase a pistol,
  • MCL 750.233, intentionally pointing or aiming a firearm without malice
  • MCL 750.234, discharging a firearm while intentionally aimed without malice
  • MCL 750.234d, possessing a firearm on prohibited premises
  • MCL 750.234e, brandishing a firearm in public
  • MCL 750.234f, possession of a firearm in public by an individual less than 18 years of age
  • MCL 750.235, discharging a firearm pointed or aimed intentionally without malice causing injury
  • MCL 750.237, possessing or discharging a firearm while under the influence
  • MCL 750.237a, weapon-free school zone violation
  • MCL 750.335a, indecent exposure
  • MCL 750.411h, stalking
  • MCL 750.520e, fourth-degree criminal sexual conduct
  • MCL 752.861, careless, reckless, or negligent use of a firearm resulting in injury or death
  • MCL 752.862, careless, reckless, or negligent use of a firearm resulting in property damage
  • MCL 752.863a, reckless discharge of a firearm

-3-year period of denial misdemeanors:  A person convicted of any of the following common offenses is required to wait eight (8) years before applying for a CPL:

  • MCL 257.625, operating while intoxicated, visibly impaired, under 21 years of age with any bodily alcohol content, or with any presence of a Schedule 1 controlled substance or cocaine
  • MCL 257.625a, refusal of commercial motor vehicle operator to submit to a preliminary chemical breath test
  • MCL 257.625k, ignition interlock device reporting violation
  • MCL 257.625l, circumventing or tampering with an ignition interlocking device
  • MCL 333.7401 to 333.7461, controlled substance violation
  • MCL 750.167, disorderly person
  • MCL 750.174, embezzlement
  • MCL 750.218, false pretenses with intent to defraud or cheat
  • MCL 750.356, larceny
  • MCL 750.356d, retail fraud second or third degree
  • MCL 750.359, larceny from vacant structure or building
  • MCL 750.362, larceny by conversion
  • MCL 750.362a, refuse or neglect to return vehicle, trailer, or other tangible property delivered on a rental or lease basis with intent to defraud the lessor
  • MCL 750.377a, malicious destruction of personal property
  • MCL 750.380, malicious destruction of real property
  • MCL 750.535, receiving, possessing or concealing stolen, embezzled, or converted property
  • MCL 750.540e, malicious use of service provided by telecommunications service provider

Additional misdemeanors that will result in CPL denial periods are listed at MCL 28.425b.

Pistol Free Zones

Pursuant to  MCL 28.425o, it is illegal for a person with a CPL to carry a pistol at the following places:

  • School property except while dropping off or picking up a student.
  • Day care center, child caring agency, or public or private child placing agency,
  • Sports arena or stadium,
    A tavern where the primary source of income is the sale of alcoholic liquor by the glass consumed on the premises,
  • Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official allows concealed weapons.
  • An entertainment facility that has a seating capacity of 2,500 or more,
  • Hospital,
  • Dormitory or classroom of a community college, college, or university,
  • Casino

Furthermore, per Administrative Order 2001-1 of the Michigan Supreme Court:

  • “Weapons are not permitted in any courtroom, office, or other space used for official court business or by judicial employees unless the chief judge or other person designated by the chief judge has given prior approval consistent with the court’s written policy.”

The following penalties may also be imposed for carrying a concealed weapon in a pistol free zone:

  • First offense:  State Civil Infraction, $500 fine, CPL permit suspended 6 months
  • Second offense:  90-day misdemeanor, $1000 fine, CPL permit revoked
  • Third and subsequent offenses:  4-year felony, $5000 fine, CPL permit revoked

Declaring your CPL when confronted or pulled over by the police

Pursuant to MCL 28.425f, an individual that is licensed to carry a concealed weapon shall carry his or her CPL and state issued driver license or personal identification card while carrying a concealed weapon. Upon being confronted (pulled over, etc.), the individual carrying a concealed pistol shall show both pieces of identification to the peace officer and IMMEDIATELY disclose that he or she is carrying a concealed pistol on his or her person or in his or her vehicle.  The penalty for lack of identification is a state civil infraction. The penalty for failing to immediately disclose (carrying a firearm) is civil infraction subject to the following:

  • For a first offense, by a fine of $500.00 and by the individual’s license to carry a concealed pistol being suspended for 6 months.
  • For a subsequent offense within 3 years of a prior offense, by a fine of $1,000.00 and by the individual’s license to carry a concealed pistol being revoked.

Brandishing a firearm

CPL holders need to know that a firearm should not be produced unless absolutely necessary and in justifiable self-defense. Brandishing a firearm is a crime that involves production of a firearm for the purpose of intimidation but does not amount to aiming or an assault crime. MCL 750.234e, provides that a person shall not willfully and knowingly brandish a firearm in public, subject to the following exceptions:

  • A peace officer lawfully performing his or her duties as a peace officer.
  • A person lawfully acting in self-defense or defense of another under the self-defense act.

The federal definition of brandishing is as follows:  to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

Brandishing a firearm is a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both. In addition, a person convicted of brandishing will be denied the right to apply for a CPL for 8 years.

It is a good practice to be a private person about your firearms and your CPL. Don’t flaunt your firearm or show off.  Once a person knows that you have a firearm, it is very easy to be accused of brandishing or some other crime that can jeopardize your record and your rights. Unfortunately, fighting a lie or proving a negative is not the easiest thing to do.

Continue reading ›

102418-375x276-Chalkboardcleaningtips

Michigan’s clean slate law makes it possible to get a fresh start and wipe out several prior convictions including one offense for driving under the influence or impaired.

Summary of Michigan’s Clean Slate Law

Michigan’s expungement law has been broadened to allow for more offenses to be expunged on an individual’s criminal record than at any other time in history. MCL 780.621 contains the provisions of Michigan’s expungement law. The following is a summary of this law:

  • Individuals will be able to get up to 2 felonies and 4 misdemeanors automatically cleared. Crimes punishable by more than 10 years in prison, violent crimes, “crimes of dishonesty” such as forgery, human trafficking and other serious crimes that carry a sentence of life in prison, domestic violence, traffic offenses where someone was seriously injured or died, child abuse, sexual assault, and operating while intoxicated aren’t eligible.
  • Allows misdemeanors to be automatically expunged after 3 years, felonies after 7 years, and serious misdemeanors or a single felony to 5 years, shortening the waiting time to apply for expungement.
  • Up to 3 felonies and an unlimited number of misdemeanors may be expunged, but no more than 2 assaultive crimes and no more than 1 felony if it’s punishable by more than 10 years in prison.
  • Allows felonies or misdemeanors from the same 24-hour period — to be treated as one conviction for expungement. Assaultive crimes, crimes involving a dangerous weapon and crimes punishable by 10 or more years in person can’t be included.
  • Effective February 19, 2022, a first and only offense for driving under the influence, impaired or with a High BAC (.17 or more) may be expunged!
  • Allows those with marijuana misdemeanor convictions to apply for expungement if their offenses would have been legal for recreational use if the crime occurred after cannabis was legalized in 2018.
  • Allows a conviction for 4th Degree Criminal Sexual Conduct that occurred before January 12, 2015 to be expunged if the individual has not been convicted of another offense other than 2 minor offenses.
  • Minor offenses are a misdemeanor or ordinance violation with a maximum term of imprisonment of 90 days or less.

The Clean Slate Law makes Michigan a nationwide leader in expungement reform. To date, only Utah, California, Pennsylvania and New Jersey allow low-level offenses to be automatically cleared from records, and Michigan will now be the first to include low-level felonies in the automatic process. For thousands of Michiganders, this is an opportunity for a better life. Michigan’s Clean Slate Law creates a more just, equitable, and inclusive expungement process.

Expungement of Drunk and Impaired Driving

Effective in February 2022, an individual will be able to get 1 lifetime offense for driving under the influence expunged. Eligibility to expunge an OWI won’t come easy. First of all, the individual can have one offense expunged if that individual has only one DUI offense on his or her record. The DUI expungement law will allow for expungement of any 1 of the following offenses:

  • Operating While Intoxicated
  • Operating Under the Influence of Drugs
  • Operating While Impaired
  • Operating with a High BAC .17 or greater
  • Zero tolerance/minor with any BAC

Operating under the influence causing an injury or death are not eligible for expungement. One of the rules for anyone seeking to expunge an DUI will require the applicant to prove that he or she has resolved any underlying alcohol or substance abuse problem. This may require getting a current substance abuse evaluation and other documentation of sobriety.

The Expungement Process in Michigan

Expungement proceedings are complex and doing it yourself can be a daunting undertaking. If you fail to notify required parties (Attorney General, prosecutor, Michigan State Police) or fail to obtain a record clearance , the case will be dismissed. There are several required involved when it comes to getting an expungement. The proceeding for expungement has The DUI expungement Michigan process is very rigorous and time-consuming.

While every case varies, our format for successfully setting aside and expunging convictions typically involves the following steps:

  • Preparation of all documents.
  • Obtaining a certified copy of your conviction.
  • Correctly filing documents with the court.
  • Obtaining supporting documentation and character letters when necessary/
  • Notifying all parties including the prosecutor and Michigan Attorney General.
  • Submission of fingerprints to the Michigan State Police for a record clearance.
  • Scheduling the required court hearing.
  • Preparing our client for the hearing.
  • Appearing at the hearing.
  • Providing an Order to Set Aside Conviction.

Do I have to say I was convicted of a crime after it is expunged?

Once you are granted an expungement of a crime, you are not required to ever list it on a job application or mention it in an interview. In fact, if you are asked, you can say:

I DO NOT HAVE ANY CRIMINAL RECORD. 

How to Obtain a Copy of Your Record

The Michigan State Police maintains a central registry of criminal records in a system known as the Law Enforcement Information Network. Access to LEIN is restricted to criminal justice agencies or those agencies statutorily granted authorization. However, an individual can obtain of his or her own criminal record by following the instructions on the Michigan State Police ICHAT link: http://apps.michigan.gov.

Continue reading ›

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

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

The United States of America, a democracy founded on the equal dignity of every citizen[1]  rejects an ancient view that legal power and opportunity hinges upon accidents like parentage or geography. This is due to the fact that deeply rooted in American heritage and values is our core belief in the American Dream, a happy way of living that can be achieved by anyone in the U.S. by working hard.[2]

IMG_8288-rotatedOn March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.

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. 

Continue reading ›

Imagine this scenario: Your child is riding along M-59, Big Beaver, or Woodward Avenue, in a car with friends going out to dinner, but your child is not the driver. Then, the vehicle gets pulled over because the driver violated a traffic law. Upon approaching the vehicle, the police officer claims that he can smell a hint of marijuana and searches the vehicle. (The smell of marijuana alone can provide probable cause to justify a search).  The police officer finds marijuana in the center console of the vehicle (or other compartment) and arrests everyone, including your child, regardless of the fact that the marijuana was not theirs.

girl-smokign-weed-in-car-for-blog
As a caring parent, you’d wonder whether your child could legally be charged with possession of marijuana even though it wasn’t theirs or they didn’t use it? The short but unfortunate answer is: Yes, they can. Charges for possession may be brought against passengers who do not legally own the marijuana (or other drugs), do not have it in their personal possession, and do not know that it is somewhere within the vehicle.

Possession Defined: Under MI law, to be charged with “possession” of a controlled substance, there must be a “sufficient nexus” between the controlled substance and the defendant, a legal concept known as constructive possession. This “nexus” does not need to be established through direct evidence. Instead, it can be established through circumstantial evidence, or inferred from the “totality of the circumstances”. MI courts have concluded that the following fact-based factors determine whether constructive possession in a vehicle exists:


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 ›

Contact Information