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IMG_2467-rotated

Actual Image of Michigan Application to Set Aside/Expunge Conviction (MC227)

There are several reasons that you might need to know how to obtain your criminal record. You might need to obtain your criminal record to accurately fill out an application for employment or college. An attorney may want to do a background check if you are under a criminal investigation or being charged with a criminal matter. In addition, upon filing an expungement, an attorney is required to request the criminal history of the applicant.

How to order a copy of your criminal record

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macomb-courts-logoMacomb County OWI Guide by Local OWI Attorneys

Macomb County: 2,000 Arrests Per Year for Driving Under the Influence

Whatever situation you are facing, we know that you didn’t intentionally set out to get charged with driving under the influence.  You’re in the right place if you are looking for answers and straight facts if are charged with an OWI anywhere in Macomb County. 

We have dedicated this  article to give you the big picture on the topic of operating a motor vehicle under the influence of alcohol or drugs (DUI/OWI) in Macomb County based upon our experience handling over 10,000 criminal cases with DUI/OWI cases consistently one of the most prevalent criminal charges that we handle for our clients.

The district courts located in Macomb County are as follows:

Frequently Asked Questions: Jail, CPL, Expungement, etc.

Based upon our experience, here are a few of the most common questions that we are asked by our clients that are charged with operating a motor vehicle under the influence of alcohol or drugs:

  • Am I going to jail? You are not looking at jail in any Macomb County County District Court if you are found guilty of a first time offense involving operating while under the influence (including OWI, High BAC or Impaired Driving).
  • Will I lose my driver’s license? For first time offenses that involve operating under the influence, there may a brief period of suspension with no driving privileges upon being found guilty. For example, an individual convicted of OWI with a high BAC will be suspended (no driving) for the first 45 days followed by restrictions (for employment and other purposes) with a BAIID device  for 320 days. We explain license sanctions in more detail in this article.
  • When should I hire a lawyer? It might take a month or longer before you get your first court date. However, you don’t need to wait until you get a court date before hiring a lawyer. You should consider hiring a lawyer as soon as possible if you are charged with any crime or drunk driving. There are proactive measures and strategies that can be taken right away if you are facing a criminal offense or drunk driving.
  • Can a drunk driving ever get dismissed? The answer to this question is YES. It is difficult to get a drunk driving dismissed but entirely possible based upon numerous legal and non-legal variables and circumstances. Even when a case cannot be dismissed, there is a good chance that it will be reduced to a lower charge. Getting a local attorney that specializes in drunk driving is your best option if you are looking to get the best possible representation.
  • Can I get an old drunk driving expunged? YES. Effective February 19, 2022, as part of Michigan’s Clean Slate laws, an individual may get one and only one drunk driving expunged if he or she meets the eligibility requirements and has resolved any underlying alcohol or substance abuse problem. 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
  • What is a BAIID device? A Breath Alcohol Ignition Interlock Device, or BAIID, is a device installed in a vehicle that captures the image of the drive and measures the driver’s blood alcohol content (BAC). The BAIID notifies the driver to provide breath samples when starting the car and at intervals while driving. The information is recorded and downloaded by the BAIID installer. BAIID violations can result in reinstatement of license suspension or revocation. A BAIID device allows an individual, whose license is otherwise legally suspended or revoked, to drive a vehicle. The BAIID is required for individuals that have been convicted of OWI with a high BAC, Sobriety Court participants convicted of two drunk driving offenses within 7 years and individuals with multiple drinking/drugged driving convictions that been granted driving privileges by the Secretary of State after a license restoration hearing.
  • Will I lose my CPL if I am convicted of an OWI or Impaired Driving? Unfortunately, you will lose your Concealed Pistol License (CPL) rights if you are convicted OWI or Impaired Driving. The right to have a CPL is gone for 3 years after a first time offense for operating under the influence. An individual convicted for a second offense will lose his or her CPL rights for 8 years.
  • Can I travel across the border into Canada if I am convicted of OWI or Impaired Driving?  Based upon Canadian immigration laws, a person that has been convicted of OWI or Impaired Driving will be considered criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.

Michigan State Police Maintain Annual Drunk Driving Statistics

There are approximately 2,000 or more arrests per year for driving under the influence in Macomb County. The Michigan State Police (MSP Drunk Driving Audit) keeps statistics on the number of individuals tested for alcohol and drugs, the test result scores and the outcome of each case in the court system. For 2019 (2020 results are not being used because  irregularities due to Covid-19 stay-at-home measures), the Michigan State Police report indicates the following number of people were tested for alcohol or drugs by a breath or blood test in Macomb and surrounding counties:

  • Wayne: 4,631
  • Oakland: 4,126
  • Macomb: 2,130
  • St. Clair: 468

The MSP Drunk Driving Audit gives the numbers of those tested by each police department as well. In 2019, some of the larger police departments in Macomb County and neighboring Oakland County reported a large number amount of individuals tested for alcohol and drugs:

Macomb County: Number of individuals tested for alcohol/drugs

  • Clinton Township Police: 164
  • Chesterfield Township Police: 153
  • Sterling Heights Police: 140
  • Shelby Township Police: 137

Oakland County: Number of individuals tested for alcohol/drugs

  • Troy Police: 280
  • Royal Oak Police : 215
  • Rochester Police : 120

(Above numbers do not account for other individuals tested by Macomb Sheriff, Oakland Sheriff & MSP within the above cities.)

Of those tested, most wound up facing a criminal charge for operating a motor vehicle under the influence of alcohol or drugs.  Those finding themselves charged with operating a motor vehicle under the influence of drugs or alcohol (DUI/OWI), rarely fit the mold of someone that you would expect to get into trouble with the law. In many situations, our clients have responsible employment, solid relationships and lead healthy lifestyles. On the other extreme, we have represented those that admit to a substance abuse problem, use alcohol as a social lubricant after a recent breakup or divorce and/or are self-medicating to numb psychological disorders, relationship problems or a significant loss. Unfortunately, once in the court system, a person can be unfairly treated and characterized as a substance abuser because of an isolated episode of alcohol consumption and lack of knowledge of Michigan’s strict DUI laws.

What do the all of the abbreviations (OWI, DUI, etc.) stand for?

The following are common abbreviations used by the legal system in reference to the various charges for operating while intoxicated or impaired:

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

Why did the police destroy my driver’s license? Can I drive with this paper license?

dui 257g

Yes, you can drive fully on the paper license issued by the police when you were released from jail.

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 driver’s license of the accused party and issue a Michigan Temporary Driving Permit (see above image).  The temporary permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, search warrant for blood if there was a refusal, 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. Upon being found guilty or convicted of operating while intoxicated or impaired, the Secretary of State will take appropriate action against the party’s license (suspend, revoke, restrict). The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

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

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

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

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

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

The Science of Blood Alcohol Content (BAC)

Shot, Beer, and Wine

Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, an individual can be considered legally intoxicated even though the individual is not actually intoxicated. This is possible because Michigan has set legal BAC limits for individuals that operate a vehicle after consuming alcoholic beverages:

  • Operating While Intoxicated (OWI): A person that operates a motor vehicle with BAC of .08% to .16% is considered legally intoxication, regardless of actual intoxication. A BAC of .08% is sufficient to support a charge of Operating While Intoxicated (OWI).
  • Super Drunk Driving or OWI with High BAC: A person that operates a motor vehicle with BAC of .17% or greater, regardless of actual intoxication, faces a higher charge of OWI with a High BAC.

DUI BAC CHART MALE & FEMALE

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.

Defending OWI Offenders in Macomb County

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! 

Getting charged with an OWI can be a dreadful ordeal. Being arrested and spending the night in jail is something that most of our clients have never experienced and that they don’t easily forget. Getting past these traumatic events requires an action plan by attorneys that specialize in handling  Macomb County drunk driving cases. There are 2 main variables that can influence drunk driving charges:

  1. Blood alcohol content (BAC):  Having a BAC of .08 or more meets the threshold for the charge of OWI. However, if the offender has a BAC of .17 or more, the charge is increased to “Super Drunk Driving“.
  2.  Prior drunk driving convictions: A person with one or more prior drunk driving convictions faces enhanced penalties for future drunk driving convictions. A second offense for drunk driving within 7 years of a first offense carries up to 1 year in jail and revocation of driving privileges. Getting a third drunk driving in one’s lifetime is a felony that can carry five (5) years in prison.

Working with a local attorney who knows how to deal with the following inquiries is your best bet to get an OWI dismissed or reduced:

  • What was the reason for the traffic stop?
  • Did the police have evidence that you operated the vehicle?
  • Was there an accident? Single vehicle or with another vehicle or pedestrian?
  • Was anyone injured?
  • Was the vehicle in a safe place (parked, engine off)?
  • What the vehicle likely to be put in a position of danger?
  • What did you consume (alcohol, prescription meds, illegal drugs)?
  • Did others that saw you earlier feel that you were impaired or high?
  • Is the test result accurate or is an independent test necessary?
  • Was the testing equipment inspected? Calibrated?
  • Does our client have any prior offenses for driving under the influence?
  • Does our client have any other criminal record?
  • Was client cooperative with the police?
  • Should our client get an independent substance abuse evaluation?
  • Should our client begin counseling and/or AA?

The Court Process in Macomb County

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

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

What about driving under the influence of marijuana?  

Marijuana is now legal in Michigan for recreational and medical use. However, a person that drives under the influence of marijuana is exposed to the same fate as someone that drives after consuming alcohol.

Alcohol can be tested by obtaining a breath sample with equipment known as a breathalyzer instrument. Marijuana is discovered by a blood test. In Michigan, drinking and driving charges are based upon legally established measurements of blood alcohol content (BAC) as measured by the testing equipment. The legal limits (BAC) for drunk driving in Michigan per se cases are as follows: Content results

  • OWI = BAC .08 or greater
  • Super OWI = BAC .17 or greater

No such legal limits for THC exist at this time and there is no approved testing instrument for marijuana that compares to the breathalyzer.  Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

In general, the blood test results (THC nanogram levels) alone are insufficient to convict without other proof of impairment. There are a multitude of legal challenges that can be made in these cases especially when the blood test does not account for active THC or there is a lapse in time when marijuana was last used.

What will happen with my drunk/drugged case in Maacomb County?

Getting a dismissal is a top priority in every criminal or drunk driving case. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request (for a reduction to a lower charge) or negotiating a plea bargain to a better place. According to US Justice Department Statistics, approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. The same is true for criminal and drunk driving cases in Michigan and in the Macomb County .  Plea bargaining can result in a dismissal, a reduction in the charges as well as recommendations for leniency at the sentencing phase of the case. Here are some common scenarios for drunk driving/drugged driving cases in Macomb County:

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

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

SUPER OWI, High BAC (.17 or greater): Getting charged with OWI with a high blood alcohol content (BAC) of .17 or greater in Michigan means stiffer penalties and being labeled a “super drunk driver”. For whatever reason, we are seeing a greater number of clients charged with “super drunk driving”. In 2018, approximately 660 individuals were tested by  the police in Warren, Shelby Township, Sterling Heights and Clinton Township with 301 registering a BAC of .17 or greater. If convicted of “super drunk driving”, the offender is required to have a Breath Alcohol Ignition Interlock Device (BAIID) on any vehicle he or she intends to operate for a period of 320 days after serving out a 45 day driver’s license suspension with no driving privileges. Contact a local Macomb County OWI lawyer to find out how a “Super OWI” can be dropped down to a much lower offense that will NOT REQUIRE the BAIID.

SECOND OFFENSE WITHIN 7 YEARS: Along with possibility of jail, a second offender faces mandatory license revocation upon being convicted of a second drinking and driving offense within a period of 7 years or a third conviction within a 10 year period. There are NO driving privileges allowed during a period of revocation. For those facing license revocation, driving privileges can be saved if the person is accepted in a Sobriety Court program. The Sobriety Court program allows eligible individuals convicted of certain drunk driving offenses to obtain a restricted driver license with installation of an ignition interlock device (BAIID) on vehicles they drive and own.  Sobriety Court is a good fit for someone that needs an intensive alcohol rehabilitation program and also for those convicted of a second offense for operating under the influence within a 7 year year period.

THIRD LIFETIME OFFENSE, Felony Drunk Driving: A person convicted of OWI with two prior offenses in his or her lifetime faces the following penalties:

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

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

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

Can a drunk driving case ever be completely dismissed?

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

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

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

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

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

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

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stealing-from-walmart-self-checkout

Retail fraud can occur by concealing property,

by engaging in certain fraudulent activity or bypassing a checkout scanner.  

41A District Courts: Locations in Sterling Heights and Shelby Township

Criminal cases which occur in Sterling Heights, Shelby Township, Macomb Township and Utica are handled at one of the above 41A District Courts. The Shelby Township location has jurisdiction over cases that occur in Shelby Township, Macomb Township and Utica.  41A District covers a large geographical area in the County of Macomb with two court locations: 

There are numerous retail establishments and shopping corridors situated within the jurisdiction of the 41A District Courts.  In addition to Lakeside Mall, there are numerous other national retailers and big box stores located on the M-59 corridor and on major shopping corners and centers throughout Sterling Heights, Shelby Township, Utica and Macomb Township including Sam’s, Meijer, Walmart, Kmart, CVS, Home Depot, Lowes Home Improvement, Target and Kohls.

The courts, police and prosecutor will not give you legal advice!

This publication is based upon our law firm’s extensive experience practicing criminal law in the 41A District Courts. Do not hesitate to hire a lawyer to protect your rights if you are being accused or charged with a crime. The courts, police and prosecutor will not give you legal advice.

Retail Fraud is Shoplifting: Possible arrest on the spot or released and notified of a court date

The crime of shoplifting, which is called retail fraud in Michigan, is one of the most prevalent crimes that we see in both of the 41A District Courts as well as every other district court in Macomb County!

Retailers use a variety of resources to deter theft and identity shoplifters. The offense of shoplifting, or retail fraud, occurs when a person does any one of the following acts with an intention to steal property from a retail establishment:

  • Conceals property on his or her person, or otherwise, with the intent to steal.
  • Changes a price tag or label with the intent to create or cause a misleading transaction.
  • Attempts to defeat the self scanning checkout system.

After identifying a shoplifter, the loss prevention employee will obtain identification and detain the suspected party unless apprehension and detention is dangerous or met with resistance. Insofar as possible, loss prevention employees are trained to avoid confrontations which could result in personal injuries or liability to the retailer.  The shoplifter may be held in custody until a bond is posted or released and  notified of a court date in about 30 days.

Once apprehended for retail fraud, one of the following scenarios may occur:

  • The police are called to the scene and the person may be arrested, booked and released on bond until a court date is scheduled.
  • The person may be released and notified by mail once the case is within the court system.
  • The person may be issued a ticket or notice to appear in court within 10 days or on specified date.

Video Evidence of Self Scanner Fraud: Getting caught red handed is one way that shoplifters get nabbed.  Reviewing video footage of a particular customer’s shopping activity is another way that retail fraud offenders are flushed out.  If a customer is suspected of retail fraud, particularly at a self checkout scanner, a loss prevention officer may track the customer’s credit card transactions and match them up with the video of the person’s checkout activity. If the customer is seen placing items in a bag, or bypassing the checkout scanner, without paying for the items, the customer may be charged with retail fraud. The following are a few ways people steal at self checkout terminals:

  • Failing to scan items, usually of greater value (leaving them in a shopping cart).
  • Placing an item in a bag or in the bagging area without scanning it.
  • Creating confusing to distract store employees.

Multiple charges may be levied against a single customer if the video evidence reveals several illegal transactions. The transactions may be combined to charge an individual with multiple crimes or the separate transactions may be consolidated to elevate the crime to a felony if the amount involved is $1,000.00 or more.

The evidence in a retail fraud case will consist of the police report, any witness statements, confession of the accused party and any photographic or video evidence of the incident. Employees and loss prevention officers of the retail establishment will be asked to cooperate with the prosecutor and the court system in later proceedings against the accused party.

Penalties for Retail Fraud: Criminal Record, Possible Deportation

Retail fraud in the first degree is a felony. Retail fraud in the second and third degree are misdemeanors. Retail fraud is a crime of dishonesty which could result in a permanent criminal record if not handled by an experienced retail fraud lawyer. Retail fraud is also considered a crime involving moral turpitude which can result in deportation for non US citizens. Thus, a person who faces retail fraud charges should hire a lawyer as soon as possible. A lawyer can provide invaluable sound legal advice and a strategy which could keep result in a dismissal of the offense, depending upon the circumstances and the prior criminal record of the offender.  The penalties for retail fraud are:

  • Retail Fraud First Degree: If the value of the merchandise is $1,000.00 or more, up to 5 years in prison and/or fine up to $10,000.00, or 3 times the value of merchandise.
  • Retail Fraud Second Degree: If the value of the merchandise is $200 but under $1,000.00, up to 1 years in jail and/or fine up to $2,000.00, or 3 times the value of merchandise.
  • Retail Fraud Third Degree: If the value of the merchandise is under $200,up to 93 days in jail and/or fine up to $500.00, or 3 times the value of merchandise.

Michigan Law provides that a person who commits an act for which he or she could be charged with retail fraud is liable to the merchant for the full retail price of un-recovered property or recovered property that is not in salable condition, and civil damages of 10 times the retail price of the property, but not less than $50.00 and not more than $200.00.

In addition, the court can order restitution at the time of sentencing. Restitution is compensation for a victim’s losses.

Retail Fraud Cases DISMISSED!

You are not alone if you facing a shoplifting charge. Some of our clients say that they are happy when they got caught because it (shoplifting) was getting out of control. Others do not have a history of shoplifting but committed the offense on an impulse or desperation. Having a lawyer by your side is your best bet to insure that your rights are protected and to avoid saying the wrong thing that can hurt your case in the legal system. Don’t convince yourself that you can outsmart the legal system.  First of all, based upon our experience handling retail fraud cases in the 41A District Courts, 100% of of first time retail fraud offenders are eligible for

If you are charged with a first offense for retail fraud, a disposition for a dismissal is a realistic goal. Based upon our experience, more than 95% of all retail fraud cases are resolved without a trial. There are several provisions of law which we can use to get a retail fraud case case dismissed including: 

  • HYTA allows youthful offenders to get a dismissal and the record sealed from public view.
  • Juveniles, age 17 or under, may be eligible for consent calendar to get a criminal charge dismissed, sealed and with no record created.
  • Adult offenders may be eligible to get a retail fraud deferred and dismissed under a special provision of law.
  • For aliens (non US citizens), our goal is to get the charge amended to a non-deportable offense.

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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.

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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.

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Social Security, Disability Insurance and Supplemental Security Income

Social Security benefits are paid to eligible individuals that have attained the minimum retirement age, 62 or older. To be eligible for Social Security, an individual must have the requisite number of credits. Social Security credits are calculated based on an individual’s earnings and number of working years. A person is required to have 40 credits which are earned over a period of 10 year period. A person can earn no more than 4 credits a year. In 2021, a person may earn one Social Security or Medicare credit for every $1,470 in covered earnings each year. A person must earn $5,880 to get the maximum four credits for the year. The amount of earnings it takes to earn a credit may change each year.

Social Security Disability Insurance benefits are paid to individuals that have earned the required amount of credits for Social Security but have not reached the minimum retirement age and have become disabled.

Supplemental Security Income benefits (SSI) is a Federal program which is not funded by Social Security taxes. It provides monthly benefits to individuals to meet basic needs for food, clothing, and shelter. The base monthly federal amount varies depending on your living arrangement and income.

Social Security Benefits are Suspended During the Months of Imprisonment

Social Security retirement benefits, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are not payable during the months that an individual is imprisoned for conviction of crime. All benefits, except Medicare and Medicaid, are suspended upon imprisonment for more than 30 continuous days.  Benefits can be reinstated starting with the month following release from any further incarceration. Although you can’t receive monthly Social Security benefits while you’re incarcerated, benefits will continue to your spouse for children that remain eligible. SSI benefits are also suspended during a period of incarceration for more than 30 continuous days.

Social Security Benefits are Resumed Upon Release from Jail or Prison

Social Security benefits, including SSI and disability benefits, will resume in the month that a person in released from jail or prison.  The payments will not start automatically. If benefits have been suspended,  a request must be made to have them reinstated. In addition, a copy of release documents must be obtained to facilitate coverage without any lapse.

Medicare or Medicaid Benefits 

Eligibility for Medicare Part A (Hospital Insurance) continues without any gap in coverage while you’re in prison. On the other hand, to keep Part B (Medical Insurance) activated, monthly premiums must be paid or coverage will be terminated.  If coverage is interrupted because of incarceration and non payment of Medicare premiums, an application may be filed during the subsequent General Enrollment Period.

Avoiding Criminal Convictions and Jail

If you are charged with a crime, don’t expect the police, the prosecutor or court employees to help you. They do not represent you and unless they advise you to hire a lawyer, you may end up steering yourself into a brick wall. The good news is that most judges in the State of Michigan do not impose jail for the most prevalent crimes. A skilled criminal defense lawyer can explain how a misdemeanor or felony conviction and jail can be avoided. There are also special provisions of law to protect the rights of first time offenders and even for those with a prior criminal record.

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Find out how YOU can avoid points from going on your driving record!

Here’s why fighting every traffic ticket is a wise investment

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 the local court system. 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.  The government is not on your side and neither is your insurance company. You will be sorry very quickly if you pay a ticket without fighting it.

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 the outcomes that can be expected in the court system if you contest a ticket with a lawyer. 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, or 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?

Michigan law categorizes certain traffic offenses as criminal which carry points (go on your driving record), possible jail, probation and other and driving sanctions (suspension). Criminal traffic violations are usually, such as leaving the scene of an accident carry 6 points. 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

 

Getting a local attorney to fight your criminal traffic violation is a wise investment to avoid  a criminal record and other harsh sanctions that are attached to criminal offenses.

CPL rights forfeited 3-8 years for criminal traffic violations: If you are convicted of a felony, you may not own or possess a firearm. If you are convicted of certain criminal traffic misdemeanors, you may lose your “concealed carry” rights. 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.

Expungement is now allowed for criminal traffic violations: Under Michigan’s Clean Slate laws, criminal traffic violations and 1 drunk driving may be expunged.

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.

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Possession or sale of drug paraphernalia is a crime in Michigan

Possession or sale of drug paraphernalia is a criminal offense in Michigan. A person may be charged with the offense “possession of drug paraphernalia” even though the person does not possess any drugs at the same time. Most items the law considers drug paraphernalia are harmless and not otherwise illegal. However, when the items are associated with past or present illegal drug use, criminal charges may be pursued.

The ramifications of a criminal record, even for a minor offense, can last a lifetime. A criminal record can have a negative impact on travel, employment, educational opportunities, loans and leases. In this article, we explain how an attorney can help you or a loved one avoid a criminal record for a drug crime.

Making the assumption that a drug paraphernalia charge is not a big deal is a big mistake.  By rushing to the courthouse to plead guilty without a lawyer, you will wind up with a criminal record. If you are facing any criminal matter, talk to a lawyer first about your options and whether there is an efficient way to out of the system clean with a clean record!

Michigan’s drug paraphernalia statute 

According to Michigan’s drug paraphernalia law, MCL 333.7451, Drug paraphernalia means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance; including, but not limited to, all of the following:

  (a) An isomerization device specifically designed for use in increasing the potency of any species of plant which plant is a controlled substance.
  (b) Testing equipment specifically designed for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance.
  (c) A weight scale or balance specifically designed for use in weighing or measuring a controlled substance.
  (d) A diluent or adulterant, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose, and lactose, specifically designed for use with a controlled substance.
  (e) A separation gin or sifter specifically designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana.
  (f) An object specifically designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body.
  (g) A kit specifically designed for use in planting, propagating, cultivating, growing, or harvesting any species of plant which is a controlled substance or from which a controlled substance can be derived.
  (h) A kit specifically designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.
  (i) A device, commonly known as a cocaine kit, that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body, and which consists of at least a razor blade and a mirror.
  (j) A device, commonly known as a bullet, that is specifically designed to deliver a measured amount of controlled substances to the user.
  (k) A device, commonly known as a snorter, that is specifically designed to carry a small amount of controlled substances to the user’s nose.
  (l) A device, commonly known as an automotive safe, that is specifically designed to carry and conceal a controlled substance in an automobile, including, but not limited to, a can used for brake fluid, oil, or carburetor cleaner which contains a compartment for carrying and concealing controlled substances.
  (m) A spoon, with or without a chain attached, that has a small diameter bowl and that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body.
Making it a priority to know how these items can be used to facilitate drug use may help a parent or friend to recognize that a loved one is abusing drugs. If you or a loved one is facing a criminal case for possession of drug paraphernalia, or any other drug crime, getting a lawyer to fight for dismissal should also be a high priority.

Defending Drug Paraphernalia Cases

Possession of drug paraphernalia is a crime which is classified as a misdemeanor. In Michigan, misdemeanor cases such as possession of drug paraphernalia, are handled in the district courts. There are 9 district courts in the county of Macomb as follows:

Possession of drug paraphernalia does not belong on your criminal record. Even if you do not have a drug abuse problem, you will have a hard time convincing others that may have access to your record. There are many neat and efficient ways to resolve possession of drug paraphernalia in the Macomb County District Courts to get it DISMISSED. The following provisions of law are widely used to get eligible crimes DISMISSED:

  • Consent calendar (age 17 and under): A name given for a juvenile disposition that results in NO RECORD and NO CONVICTION
  • HYTA (age 18 but before age 26): The HYTA statute is only available for youthful offenders to get eligible criminal matters DISMISSED with NO PUBLIC RECORD.
  • Deferral: A deferral is typically used pursuant to MCL 771.1 to allow a person to earn a dismissal or other leniency after a period of compliance. At the end of the period (1 year for example), which is known as the deferral period, a criminal matter is subject to leniency, dismissal or reduction of the charge(s).

What if drugs are found by the police along with drug paraphernalia

Possession of drug paraphernalia rarely happens by itself and it often accompanied with other criminal charges, such as possession of illegal drugs and maintaining a drug house. Drugs are classified from Schedule 1 to Schedule 5. Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, ecstasy, methamphetamine. All Schedule 1 drug possession crimes are felonies which can carry long term imprisonment and substantial fines. Most drug possession crimes are felonies requiring criminal felony representation. The penalties for illegal “possession” of drugs are as follows:

  • Possession of heroin and cocaine can carry up to 4 years in prison and up to a $25,000.00 fine.
  • Possession of ecstasy and methamphetamine can carry up to 10 years in prison and up to a $15,000.00 fine.
  • Possession of analogues (Xanax, Adderall) without a valid prescription can carry up to 2 years in prison.

Getting a local experienced Macomb County drug crime attorney is a good first step if you are looking to get your drug charges dismissed. MCL 333.7411 is specifically meant to be used for any misdemeanor or felony drug crime involving “use or possession” of drugs, but not for drug crimes involving “delivery or manufacturing”. We can also consent calendar, HYTA and MCL 771.1 to get a drug crime dismissed or reduced from a felony to a misdemeanor.

Search without a warrant based upon plain view or consent

Drug paraphernalia and drug crimes are almost always based upon a search and seizure that is conducted by the police. A search of a person or motor vehicle requires the police to have a warrant or other legal grounds to conduct a search without a warrant. A warrant is not required if something is in “plain view” or if the police obtain voluntary “consent” to conduct a search by someone with proper authority. In order to conduct a consent search, the person whose property is being searched must voluntarily waive his or her Fourth Amendment rights. However, the police do not always follow the rules when conducting a consent search.  A consent search can be fought on the grounds that the police used unfair tactics or threats to get consent. Continue reading ›

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Over 20,000 drug crime incidents each year in Michigan

Drugs are classified according to schedules in the Michigan Controlled Substance Act. The Controlled Substance Act labels the most dangerous and addictive drugs as Schedule 1 narcotics. Drug crimes and their corresponding penalties are also found in the Michigan Controlled Substance Act and the Michigan Penal Code. The penalties for drug crimes vary depending upon the drugs involved and whether the offender was involved in delivery, trafficking, manufacturing, possession or merely using drugs. Delivery and manufacturing Schedule 1 narcotics carry the greatest drug crime penalties. This publication is dedicated to the topic of drug crimes in Michigan and covers some of the most frequently asked legal questions with respect to drug crimes:

  • What are the penalties for a drug crime?
  • Can my drivers license be  suspended for a drug crime?
  • When can the police search my vehicle?
  • Can a case be dismissed if someone else is willing to take the rap in the court system?
  • Should I do undercover work (snitch/cooperate) if I am facing a drug crime?
  • Can I be charged with maintaining a drug house if I was in my car?
  • Do I lose my rights to possession a firearm if I am convicted of a felony drug crime
  • Do I lose my rights to Carry a Concealed Pistol (CPL) if I am convicted of a misdemeanor drug crime?
  • How does the law “7411” help me if I am charged with a drug crime?

Drug problems do not discriminate and we all know someone very close to us that has struggled with a drug problem. In our experience, the Macomb County Courts have long adopted a philosophy and culture to foster rehabilitation and not to punish someone for a drug crime. 

Throughout Michigan, there are over 20,000 criminal drug violations of the the Controlled Substance Act each year. This does include thousands of other incidents for theft crimes, gun crimes and violent crimes related to drug use and addiction. The Metro-Detroit region, consisting of Macomb, Oakland and Wayne Counties has the highest number of drug crimes based upon Michigan State Police Statistics.  We base this article on our firm’s experience defending client’s charged with misdemeanor and felony drug crimes in the Macomb County District Courts:

If you are being charged or investigated for a drug crime, do not hesitate to contact an attorney that specializes in criminal law for guidance. Drug crimes are often management and and can be resolved with no jail and a dismissal of the original criminal charge(s). The most important things that the prosecutor and court will consider is whether someone is maintaining abstinence and involved in substance abuse treatment:

  • In-patient treatment
  • Outpatient treatment or an intensive outpatient program
  • Passing drug tests
  • Attending AA/NA meetings or other support group

More drug crimes involve prescription medications: MAPS allows law enforcement to track prescribed medications

Marijuana is legal for recreational purposes in the same way as alcoholic beverages and it is no longer a crime to possess or use marijuana. However, a high number of the drug crimes that we handle in the Macomb County Courts are for illegal possession of prescription medications. Unfortunately, various pain and psychotropic drugs can be obtained on the streets or very close to home. It is a felony for a person to possess a prescription medication that does not match up to a valid prescription. The excuse that your grandma left her prescription in your car will not work and you can face felony drug charges for having someone else’s prescribed medications in your possession.

Michigan has a system known as the Michigan Automated Prescription System (MAPS). MAPS is a prescription monitoring program used to track controlled substances, schedules 2-5 drugs. It is a tool used by prescribers and dispensers to assess patient risk and is also used to prevent drug abuse. The MAPS system is also widely used by law enforcement agencies.

Drug crime penalties: Use, Possession, Delivery, Possession with Intent to Deliver

Again, this publication is packed full of useful information regarding drug crimes .  First of all, the seriousness of a drug crime will depend upon its classification in the Controlled Substance Act. All drugs in Michigan are classified from Schedule 1 to Schedule 5 pursuant to MCL 333.7212 of the Michigan Public Health Code. The breakdown of drugs into schedules is based upon the drug’s potential for abuse/addiction. Schedule 1 drugs, such as heroin and methamphetamine, are considered the most dangerous/addictive/abusive and carry the harshest criminal penalties. In addition to drug classifications, Michigan laws breakdown drug crime penalties based upon the type of conduct associated with drugs. Activity that involves delivery/trafficking drugs carries bigger penalties than merely possessing or using drugs.

Penalties for Delivery or Possession with Intent to Deliver Drugs: The most serious drug crime criminal penalties are reserved for offenders convicted of delivery, or trafficking, drugs. All drugs crimes associated with delivery, or possession with intent to deliver,  are felonies.

Ecstasy/MDMA

Methamphetamine

Heroin

Cocaine

Oxycodone

Analogues, Adderall, Xanax

LSD

Psilocybin

 Felony

Felony

Felony

Felony

Felony

Felony

Felony

Felony

Felony

 

 Maximum Penalty

20 years, $25,000 fine

20 years, $25,000 fine

20 years, $25,000 fine

20 years, $25,000 fine

4 years, $25,000 fine

7 years, $10,000 fine

2 years, $2,000 fine

2 years, $2,000 fine

 

Just because someone is charged with a drug crime that contains the  element of “delivery” does not mean that they face jail or become a convicted felon. If you find yourself in this position, it is wise to contact a local criminal defense lawyer for guidance and a plan to fight the case and avoid a conviction for drug trafficking.

Penalties for Possession of Drugs (not involving delivery): Possession of illegal drugs can be charged as either a felony or misdemeanor, depending upon the classification of the drug(s) involved.

Drug Crime

Possession Ecstasy

Possession Meth

Possession Heroin

Possession Cocaine

Possession Oxycodone

Possession Analogues

Possession LSD

Possession Psilocybin

Possession Parphernalia

 Classification

Felony

Felony

Felony

Felony

Felony

Felony

Misdemeanor

Misdemeanor

Misdemeanor

 Maximum Penalty

10 years, $15,000 fine

10 years, $15,000 fine

4 years, $25,000 fine

4 years, $25,000 fine

4 years, $25,000 fine

2 years, $2,000 fine

1 year, $2,000 fine

1 year, $2,000 fine

1 year, $2,000 fine

Other drug crime links:

“Possession of drugs” link

“Analogue drugs” link

Other important drug crime provisions of law

A drug crime conviction will result in license suspension. An individual convicted of a felony drug crime will not be able to own or possess a firearm. However, there are special provisions of law that we can use to get drug crimes dismissed as we explain in more detail below.

  • Driver’s license suspension:  There are mandatory driver’s license sanctions imposed when a person is convicted of a drug crime. For a first time drug crime conviction, driver’s license suspension is for a period 180 days with possible restrictions after the first 30 days. A second time drug crime conviction will result in mandatory suspension for a period of 1 year with possible restrictions after serving the first 60 days with no driving. License sanctions do not apply when a drug crime is resolved pursuant to HYTA or MCL 333.7411.
  • Concealed Pistol License (CPL): A person convicted of a misdemeanor drug crime will not be able to apply for a CPL for a period of three (3) years. A person convicted of any felony, including all felony drug crimes, will not be able to own or possess a firearm pursuant to both State of Michigan and Federal laws.
  • Double penalty for second drug crime conviction:  A second drug crime conviction is subject to enhancement under MCL 333.7413 with the potential for double penalty as to incarceration and fines. This can lead to harsh consequences when a person is charged with a drug crime otherwise classified as a misdemeanor, such as possession of marijuana. A second possession of marijuana conviction would constitute a felony (2 years maximum sentence) if enhanced by the prosecutor pursuant to MCL 333.7413. In our experience as criminal and drug crime defense lawyers, the Macomb County Prosecutor’s Office does not hesitate to utilize the double penalty provision when charging for repeat drug crimes.
  • MCL 333.7411: Disposition of a drug crime pursuant to MCL 333.7411 will result in a dismissal of the drug crimes for eligible first offenders. 7411 only applies to drug crimes that involve “possession” or “use“.  7411 does not apply to any drug crimes involving the activity of manufacturing or delivery. In addition, 7411 may be only used once in a person’s lifetime.
  • HYTA: Disposition of a drug crime pursuant to HYTA results in a dismissal of the drug crime with no public record of the proceedings. HYTA allows youthful offenders to get many types of criminal charges dismissed upon successfully completing probation.
  • Expungement: Almost every drug crime, except for the most serious, are eligible for expungement.

There is no need to get an expungement of a case that is resolved pursuant to MCL 3333.7411 or HYTA because there is no adjudication of guilty with these dynamic provisions of law.

Legal grounds to search a person or vehicle without a warrant

The police may not conduct a search without a valid search warrant or legal grounds to conduct a search without a warrant.  

Based upon Michigan laws, a search may occur without a warrant under these circumstances:

  • Plain view:  Objects found in plain view are subject to seizure without any further justification provided that the law enforcement officer has acted legally.
  • Consent:  The police do not need a warrant or probable cause to search a person or vehicle if they obtain the consent of the party.
  • Smell of drugs: The Michigan Supreme Court has held that the smell of something illegal is like plain view and have said “plain smell”, can justify a search of a car without a warrant.
  • Search incident to an arrest:  If criminal conduct is discovered following a traffic stop, such as a person driving on a suspended license, the police may conduct a search of the person and an inventory search of the vehicle incident to the arrest. (Driving on a suspended license (DWLS) is a crime, not a civil infraction.

YouTube Video, I Don’t Consent to Searches:  https://www.youtube.com/watch?v=3kVX6NIPzB0

Police don’t always play fairly and use plain view and/or consent to accomplish a search without a warrant.

We know the police often say that drugs or other illegal property is in plain view when it is actually well hidden and not in plain view. Seldom are there sufficient grounds to prove an illegal search unless there is a witness or video of the police misconduct. Consent searches are also an area of contention that sometimes demand a closer look especially when consent is obtained based upon coercion or threats. Some tactics used by the police to get a party’s consent:

  • Threat to obtain a search warrant.
  • Threat to get the K-9 dogs to sniff out the dope.
  • Claim by police that person or car smells like marijuana but want to obtain consent as a second means to validate a search.

HELP: I did not have drugs in my possession but the police charged me with possession!

In the eyes of the law, there is such a thing as being at the wrong place at the wrong time. When the police find marijuana or other illegal property in a vehicle, they may opt to charge only one party, or every party/occupant that can be said to be in “possession” or control of the property.

Actual possession:  A person caught red handed with marijuana hidden in his clothing (pocket, bra) is in actual possession and would have a hard time proving otherwise.

Constructive possession:  Constructive possession means a person had knowledge of the substance and an ability to control it. This differs from actual possession and would encompass situations where drugs are not found on a person but in an area within his control. For example, assume the police find marijuana or drugs in what we call a “common area” (under a passenger seat, ashtray or on the floor). In these scenarios, the police may charge every occupant with possession under the theory of “constructive possession”.

One person willing to take the blame:  In other drug cases that wind up in the system, we may have a single party that is willing to take the rap for others. Under the circumstances, the prosecutor can still argue joint possession or that the party taking the blame lacks credibility.

Should I do cooperate with the police/provide undercover work if I am facing drug charges or get a lawyer and go with the court option?

The police may offer leniency or some concession on the drug charges in exchange for cooperation, or what is commonly known as snitching. Undercover drug operations are dangerous and a favorable deal by the police is not assured. Furthermore, undercover activities are often done outside of the court system and without the protection of a lawyer.

The advice of an experienced criminal defense lawyer is crucial when confronted with this option. Engaging in undercover drug deals is not within the comfort zone of most of our Macomb County suburban clients. In fact, our clients have chosen the court option as opposed to snitching more than 90% of the time. In addition, clients have retained our firm following a frustrating episode of cooperation/snitching.

What does it mean if I am charged with maintaining a drug house?

The prosecutor can raise the stakes on mere drug possession charges by adding an additional serious criminal charge known as “maintaining a drug house” when a person:

Knowingly maintains a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place that is frequented by persons using controlled substances in violation of this article for the purpose of using controlled substances or that is used for keeping or selling controlled substances.

Maintaining a drug house is considered a high court misdemeanor in Michigan that punishable by imprisonment for not more than 2 years, or a fine of not more than $25,000.00, or both. For many purposes, it is viewed as a felony because the punishment consequence is greater than 1 year.

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What does it mean to provide cooperation, snitch or be an informant for the police?

Cooperation, using the little fish to get the big fish, is a major law enforcement tactic utilized everywhere and every day in the United States to gain information that would otherwise be next to impossible to obtain. This practice is also used extensively in the County of Macomb as a means to frustrate illegal drug activity. An offer to cooperate can arise during a criminal investigation or following an arrest or at any stage of a criminal case.

The concept of “cooperation” with the police (also called “snitching” or “acting as an informant”) occurs when the police utilize an individual to obtain information that would otherwise be difficult to discover.  Those asked to provide cooperation are usually in trouble with the law (busted for a drug crime) and are promised consideration in the legal system in return for providing assistance. Assistance is expected to be substantial and typically involves undercover work with narcotics agents or special units. The informant is rarely advised of his or her rights and other options. The informant may later be required to testify as a witness in subsequent court proceedings unless given protection as a confidential informant (CI).

The use of informants by the government has existed for more than a 1,000 years and remains widely used today by the government and the police to:

  • Make other busts, raids, seizures,
  • Support an arrest or search warrant
  • Bolster connections to infiltrate criminal enterprise(s),
  • Flush out targets or bigger fish, and,
  • Make progress in an investigation that is stuck in the mud.

Getting into Something that is Over Your Head

As we explain in this publication, cooperation or snitching, is a tool used by law enforcement officers to combat criminal activity and is most often associated with drug crimes.  Cooperation with the police is seldom ever considered because drug crimes, especially for first offenders, can be resolved with excellent results in most cases without working with the police. In addition, you need the advice of an attorney to explain your legal rights and all of the possible risks associated with cooperation, including the following:

  • Your safety is not assured
  • Your assistance may be declared insufficient by the police
  • Criminal charges may still be pursued against you
  • Cooperation ends when the police say it ends
  • Cooperation may require engaging in bigger drug deals than justified under the circumstances to get a deal in the legal system

Cooperation (snitching) is usually arranged while the accused person is caught red handed while engaged in illegal activity or in police custody for a criminal offense. Unfortunately, the police may use these scenarios as opportunities to take advantage of the situation by threatening prosecution or by persuading the party with incentives to cooperate that include: immediate release from jail and consideration to get all criminal charges dropped. Upon being released from jail, the unwary person will be instructed to contact an undercover officer for further instructions and discouraged from contacting a criminal defense lawyer. An individual that immediately chooses this route is placing his or her trust with the same law enforcement officers that will be testifying for the prosecution should criminal charges later be pursued.

What the Police Won’t Tell You about Cooperation Can Hurt You

The police are not required to give legal advice or explain every other possible option when attempting to engage an individual to become an informant.  The police will not tell you that your case can be worked out without cooperation or that an attorney can fight the case if it is based upon an illegal search. Here are just a few other legal rights that you forego when you agree to cooperate with the police:

In addition to the above, the police won’t tell you that most drug crimes are manageable in the court system with the services of a criminal defense lawyer. Scare tactics are not uncommon as a means to harvest an informant who is lead to believe that there is no hope in the legal system without providing cooperation.  In fact, the majority of offenders are not looking at jail, may be eligible to get a felony reduced to a misdemeanor and have other excellent options to get the charge(s) dismissed pursuant to MCL 333.7411 or HYTA without providing any cooperation whatsoever to the police!

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Federal Plea and Cooperation Agreement:

“If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.”

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Drug crimes in Michigan dismissed pursuant to 7411 law

Illegal drug possession penalties

The Controlled Substances Act is a system used in the United States to classify illegal drugs (heroin) and pharmaceutical medications (Xanax, Adderall, Vicodin, Norco) according to their chemical make-up, addictive side effects and potential for abuse. The Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS) are empowered with classifying various drugs. Drugs classified under Schedule I and Schedule II are considered to be the most dangerous and carry the harshest criminal penalties.  Michigan’s drug laws follow the Controlled Substance Act classifications of drugs. In Michigan, illegal drug possession may constitute a misdemeanor or felony, depending upon the substance that is involved. The penalties for drug possession crimes in Michigan are as follows:

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