Michigan Criminal Lawyer Blog

Proving Drug Possession: “Actual Possession” is not always required

March 1, 2021 | Abdo Law Firm

Every element of a crime must be proven beyond a reasonable doubt

Every crime is made up of parts that are called elements. When a person is charged with a crime, the prosecutor is saying that there is sufficient evidence to establish each and every element of the crime beyond a reasonable doubt. The prosecutor does not always get it right. Many criminal cases result in an acquittal because an essential element of a crime has not been established beyond a reasonable doubt. In this ABDO LAW publication, the element of “possession” is explained in relation to drug crimes.

Illegal possession of drugs may constitute a felony

Possession is a necessary element in drug crimes and property crimes (receiving and concealing stolen property). For a person to found guilty of a drug crime, the prosecutor must establish that a person intentionally and knowingly possessed the illegal drugs in question. Most drug crimes are felonies that carry serious criminal penalties which can include possible jail, substantial fines and driver license suspension:

Drug Crime	Maximum Jail	Maximum Fine
Possession of MDMA	10 years	$2,000.00
Possession of methamphetamine	10 years	$2,000.00
Possession of heroin or cocaine	4 years	$25,000.00
Possession of analogues	2 years	$2,000.00

In another article, we explain how drug possession crimes in Michigan (including all Macomb County District Courts) can be dismissed pursuant to MCL 3333.7411.

“Possession” is a necessary element in drug crimes

The term possession has different meanings in the criminal justice system. A person may be charged with possession of drugs if he or she has “actual possession” or “construction possession”. Because the term “possession” has different meanings and the potential for different interpretations, it is often the subject of legal arguments in criminal cases.

Historically, actual possession was required for a conviction of a criminal case with the element of possession. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920s era of liquor prohibition, courts expanded criminal possession to include “constructive possession”. Constructive possession does not require an individual to have the physical possession of the illegal property.

Possession does not require ownership: Possession is not the same as ownership. Several criminal laws make it a crime to “possess” something that is forbidden or illegal.

Actual possession is what most of us think of as possession, that is, having physical custody or control of an object. Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it (constructive possession). To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Constructive possession is frequently used in cases involving drugs, guns and stolen property in Michigan criminal cases. Constructive possession, also sometimes called “possession in law,” exists where a person has the ability to control the object even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them.

Michigan Cases: Interpretation of constructive possession

People v Nunez (2000): In this case, police a large stash of cocaine in a home occupied by several individuals. Although Mr. Nunez didn’t have the cocaine on his person, he was charged and convicted of possession of cocaine. The police arrived at their conclusion by observing the apartment and its contents. Mr. Nunez had a key for the apartment and stayed at the apartment most of the time. His name was also found on bills within the apartment.

People v Meshell (2005): In this case, police observed a man emerging from a garage in which they later discovered methamphetamine. Upon entering the area, police noticed a strong chemical odor coming from the garage. Mr. Meshell was the only person in the area of the garage and when police ran his record, they discovered past issues with methamphetamine. Because Mr. Meshell had past issues with meth, it was obvious that he knew the smell. He was also the only one in the area at the time police observed him exiting the garage.

People v McKinney (2003): In this case, police entered a home and discovered a large amount of cocaine. Police found crack in drawers containing women’s clothing, and linked the drugs to Ms. McKinney because she was frequently staying at the apartment. By using the drug’s location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

Possession of Analogues, drugs with potential for abuse and dependency

March 1, 2021 | Abdo Law Firm

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Drugs classified from Schedule 1 to Schedule 5 by DEA

Drugs and chemicals used to make drugs are classified into five (5) schedules depending upon the drug’s medical use and the abuse or dependency potential. The abuse rate is a major factor in the scheduling of the drug. Therefore, schedule I drugs have the highest potential for abuse and for severe psychological and/or physical dependence. More information can be found in Title 21 United States Code (USC) Controlled Substances Act.

Schedule I: Drugs with no currently accepted medical use and high potential for abuse. Some examples are: heroin, lysergic acid diethylamide (LSD), ecstasy and peyote.

Schedule II: Drugs with a high potential for abuse, with potential to result in severe psychological or physical dependence. Some examples are: hydrocodone (Vicodin), cocaine, methamphetamine, methadone, oxycodone, fentanyl and Adderall.

Schedule III: Drugs with a moderate to low potential for physical and psychological dependence. Some examples are: codeine, ketamine, anabolic steroids and testosterone.

Schedule IV: Drugs with a low potential for abuse and low risk of dependence. Some examples are: Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien and Tramadol.

Schedule V: Drugs with lower potential for abuse than Schedule IV and consist of preparations containing limited quantities of certain narcotics. Schedule V drugs are generally used for antidiarrheal, antitussive, and analgesic purposes.

According the United States Code (21 USC 802) a controlled substance “analogue” means a substance which is substantially similar to the chemical structure of a schedule 1 or 2 controlled substance and has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

Possession of analogues is a felony

In Michigan, the offense of possession of analogues is a felony that can carry up to 2 years in prison and a fine of up to $2,000.00, or both. Analogues appeal to those that can no longer get a legal prescription filled and/or have an addiction. Analogues are easily obtainable on the streets or at job sites such as construction sites. Jail and a felony conviction can both be avoided if you are charged with a drug crime such as possession of analogues. Possession of illegal drugs, including analogues and medications without a valid prescription, are all crimes that can be dismissed pursuant to MCL 333.7411.

Defenses to Drug Crimes: Lack of Possession or Knowledge

Crimes are made up of elements. The issue of “possession” is an essential element of a drug crime. You can’t be convicted of a drug crime if you did not have possession. However, a person need not have actual physical possession of a controlled substance to be guilty of possessing it. Construction possession is another way that you can possess something and be found guilty of a crime. An experienced drug crime lawyer can advise a person charged with a drug crime as to possible defenses which may include:

Illegal Search and Seizure
Mere Presence at a place where drugs are present
Lack of Knowledge
Innocent Spouse or Passenger in Vehicle

Michigan Laws allow for dismissal of drug crimes!

In Michigan, possession of analogues is a felony which can be punished by up to 2 years in prison and a fine of up to $2,000.00, or both. Our firm represents a fair share of clients who are arrested or searched and the police find analogues in their possession at the time of arrest. Lately, we are seeing several cases that involve illegal possession of Xanax and Adderall. Surprising, many of our clients can verify a past medical condition or prior prescription. However, if the drugs do not match up to a current prescription, the police will charge the person with illegal possession of analogues. While old medical records and prescriptions are useful in our negotiations, in most cases they will not support an outright dismissal. In addition, it is not a defense to produce a third person’s prescription since you only have the right to possess your own medications!

There are several ways that we can get a drug crime under control. Most drug cases are felonies. Felony representation is a serious matter with a clear goal on our end of getting the felony dismissed! Fortunately, there are ways to do this and there are also ways to get a drug charge dismissed under various provisions of law in every Michigan court:

MCL 333.7411: This provision of law allows for one lifetime dismissal of a drug crime that involves possession or use, not delivery or trafficking. A person with a prior drug crime or who has used in 7411 is not eligible for this deal.

MCL 762.11: This statute allows youthful offenders to get a drug crime, including one involving delivery dismissed and the record sealed. This provision applies to youthful offenders age 18 but before age 26.

Just about any drug crime can be managed if the offender does not have a serious criminal record and gets help for the underlying drug problem.
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Accused or charged with a crime? Know your rights: The 4th, 5th, 6th & 8th Amendments to the Constitution

January 27, 2021 | Abdo Law Firm

The “bill of rights” spells out the immunities and protections granted to citizens of the United States of America. On September 25, 1789, the First Congress of the United States proposed to the state legislatures 12 amendments to the Constitution. The Second Amendment, the Right to Bear Arms, is contained within the Bill of Rights. The Bill of Rights also guarantees civil rights and liberties to the individuals such as freedom of speech, press, and religion.

The Rights of the Accused Party in a Criminal Matter

The cornerstone of personal rights for an individual charged with any criminal offense can be found in the 4th, 5th, 6th and 8th Amendments to the United States Constitution.

Arraignment: Your first day in court if you are charged with a crime

January 25, 2021 | Abdo Law Firm

Arraignment: Facing criminal charges in open court

The Sixth Amendment to U.S. Constitution guarantees that defendants shall “be informed of the nature and cause of the accusation against them.” The criminal arraignment is where the Sixth Amendment is enforced. The arraignment is the first stage of a criminal case where the person accused of a crime, the defendant, is formally brought before a judge in an open courtroom to face criminal charges. Here are a few ways an arraignment can occur or be waived:

Arrest: After a criminal investigation, a person may be arrested and brought before the court for arraignment on a felony.
Notice to appear: A person may be notified by mail or other means to personally appear for an arraignment.
Ticket or citation: A ticket or citation issued by a police officer will contain instructions to contact the court, usually within 10 days.
Misdemeanor offense: The court may allow a defendant to waive formal arraignment for a misdemeanor charge.
Felony offense: Formal arraignment is mandatory and cannot be waived.

In Michigan, arraignments must take place without unnecessary delay. If a person is not arraigned within a reasonable time, the case will be dismissed but it is subject to being reinstated at a later date.

Arraignments are only provided for criminal cases, not traffic tickets that are “civil infractions” and non-criminal.

More and more courts are not allowing arraignments to be waived for crimes such as domestic violence, drunk driving and drug crimes. A no-contact order is typically ordered assault and domestic violence crimes. For many alcohol and drug crimes (OWI with a high BAC, OWI 2nd or 3rd, possession of analogues), the court will impose alcohol/drug testing during the pendency of the case and may continue testing after sentencing as a condition of probation.

Purpose of arraignment

The arraignment is not a confrontational phase of a criminal case. However, it is an important first phase of a criminal case and that is protected by the Bill of Rights. The following legal matters are covered at a formal arraignment:

Charges are read in open court: The criminal charges and maximum penalties are read to the defendant.
Entry of plea: The court will consider accepting a plea at this time (see below for more about “plea” proceedings).
Cash or personal bond: The court will impose a personal bond (no money is required) or bond with a cash component.
Right to an attorney: The defendant is advised of his right to a court appointed attorney base upon financial circumstances.
Bond conditions: The court can impose bond conditions upon release which may include: alcohol/drug testing, no-contact order, house arrest and GPS monitoring.
Probable cause conference: A probable cause conference and preliminary examination are scheduled for felony cases.
Pretrial conference: A pretrial conference is scheduled for misdemeanor cases which serves a similar purpose as a probable cause conference.

You should always consider hiring your own lawyer for purpose of arraignment if you have the convenience to do so and have not been arrested.

Entering a plea at the arraignment: Guilty or Not Guilty?

The arraignment, being the initial phase of a criminal case, is considered a critical stage of criminal proceedings where the accused party (the defendant) is entitled to have the presence of an attorney. The court will provide a court appointed attorney for the limited purpose of arraignment if the accused party is without his or her own attorney. Without exception, an experienced criminal defense lawyer will always enter a plea of “NOT GUILTY” or “STAND MUTE” at the arraignment on behalf of the accused party. A not guilty plea is entered by standing mute. By standing mute, the defendant is representing to court that he or she is refusing to speak or exercising his or her right to remain silent.

Entering a plea upon receipt of an appearance ticket/citation

A ticket or citation may be issued by a police officer for misdemeanors charged under state law or local ordinance. A felony cannot be charged on a ticket or citation. The ticket will contain the court address and plea instructions. If you receive a ticket, you should consider contacting a lawyer to enter a plea with the court on your behalf. As I mentioned, an attorney will invariably enter a plea of NOT GUILTY to preserve future rights to fight the charge(s). If you plead guilty without a lawyer, it may be difficult to later set the plea aside.

MCL 257.728 governs the process for handling an appearance pursuant to a ticket or citation: Appearance may be made in person, by representation (of an attorney), or by mail. If appearance is made by representation or mail, the magistrate may accept the plea of guilty or not guilty for purposes of arraignment, with the same effect as though the person personally appeared before him or her. The magistrate, by giving 5 days’ notice of the date of appearance, may require appearance in person at the time and place designated in the citation.

Attorney’s role at the arraignment

You are at an automatic disadvantage when you appear before a judge for a criminal matter without the benefit of your own local attorney. Court personnel are forbidden from giving you legal advice. Although a court appointed attorney is furnished at an arraignment to make you feel like you are protected, the court process remains heavily weighted in favor of the police and the victim at this stage of the case. First, there is the police report that may contain an unfair depiction of the incident and make a bad impression on the judge. In addition, the officer in charge and the alleged victim may be present during the arraignment. The victim may have an agenda and ask the judge to impose GPS monitoring or other unfair restrictions on the defendant’s freedom. It is far easier for the arraigning judge or magistrate to impose a high bond along with harsh bond conditions in the interest of protecting the public and the victim.

The media in the courtroom: The rate of media coverage in the courtroom continues to increase and become a source of news as well as entertainment. Unfortunately, the presence of the media in the courtroom can have an influence on how everyone, including the judge and prosecutor, conduct themselves. The impartiality of the court and presumption of innocence can take a backseat in cases when the public is looking to lynch the defendant in a highly publicized case.

How can a local defense attorney make a difference? It is a fact that judges get to know the attorneys that appear before them over many cases and many years. They establish relationships and a mutual respect that can be relied upon in and out of the courtroom. A local attorney can be a vital asset to someone charged with a crime at the time of arraignment. Assuring the court that the defendant will be cooperative at all times (not use alcohol, avoid contact with the alleged victim) can make a difference in getting the judge to set a low or personal bond and limiting bond conditions that are a restriction on freedom.

What are the next phases of a criminal case after the arraignment?

A criminal case will be scheduled for pretrial proceedings following the arraignment. The first proceeding that is set will depend on whether the case is a misdemeanor or a felony.

Pretrial conference: Misdemeanors are scheduled for a pretrial conference after the arraignment. A pretrial conference is conducted between the prosecutor and defense attorney. There are no restrictions on what may be covered at a pretrial conference. However, the vast majority of criminal cases are resolved at the first or subsequent pretrial conference(s) when a plea bargain can be negotiated.

Probable cause conference: Felonies are scheduled for a probable cause conference (PCC) after the arraignment. A PCC is like a pretrial conference and may result in an ultimate resolution of a felony when a plea bargain can be achieved. Many felonies are amended to misdemeanors at a PCC. A felony that is not resolved at the PCC may be waived to the circuit court for further proceedings or scheduled for a preliminary examination.

Modification of bond conditions after the arraignment

The amount of bond (cash component) and bond conditions ordered by the court at the time of arraignment are not etched in stone. A request can be made at any time after the arraignment for termination, modification or adjustment of the bond and any of the bond conditions. A request to modify bond is made by the attorney for the defendant by filing a motion for one or more of the following:

Reduction in the amount of bond (cash) required to get out jail. A request for a person bond, whereby no money is required, may be made in a bond reduction motion.
Reduction or termination of alcohol/drug testing.
Removal of no-contact order.
Permission to allow travel out of state.
Termination of GPS monitoring/tracking or house arrest.

Can a Non-US citizen (alien) be deported from the United States upon being convicted of a crime?

January 21, 2021 | Abdo Law Firm

An alien (non-US citizen) faces deportation for certain crimes such as retail fraud or domestic violence. Among other steps, getting the crime dismissed or amended to a non-deportable crime is the key to avoiding deportation.

What does INS stand for?

INS is the abbreviation that stands for the United States Immigration and Naturalization Services. The INS is responsible for handling immigration and naturalization issues. The immigration arm of INS is responsible for the process of a foreign person, alien to the United States, to become a permanent citizen. Becoming a citizen is a complex process. A person that is found guilty of certain crimes may not only be denied citizenship but also face deportation.

What types of crimes can result in deportation?

An individual that is not a United States citizen (alien) may face deportation if convicted of a crime that constitutes either of the following:

A crime involving moral turpitude (CIMT)
An aggravated felony

According to federal laws, 8 U.S. Code 1227, an alien may be deported for the following:

Crimes of moral turpitude: Any alien who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.
Multiple criminal convictions: Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
Aggravated felony: Any alien who is convicted of an aggravated felony at any time after admission is deportable.
High speed flight: Any alien who is convicted of a violation of relating to high speed flight from an immigration checkpoint is deportable.
Failure to register as a sex offender is deportable.
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.
Retail fraud (shoplifting).

Can an alien that is convicted of drunk driving or impaired driving be deported?

A conviction of an offense in Michigan for operating while intoxicated (OWI) or impaired driving (OWVI) is NOT a crime that involves moral turpitude and is not deportable.

Can a person be deported upon being convicted of drunk driving or impaired driving?

Deportation is not imposed against an alien convicted of drunk driving or operating while impaired. However, a person convicted of drunk driving that has other criminal convictions may face deportation because of a bad criminal record. In addition, a drunk driving with other aggravating factors may result in deportation. Drunk driving that involves a serious personal injury or death are felonies and are deportable crimes.

Retail Fraud is a deportable offense

A crime involving moral turpitude (CIMT) is defined as an act that is depraved, dishonest, or vile. A misdemeanor or felony may constitute a CIMT. Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill. A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less that 1 year. In Michigan, the crime of shoplifting is called retail fraud. Retail fraud is a deportable crime in because it is a CIMT that involves dishonesty.

There are ways for an alien that is charged with retail fraud, or other CIMT or aggravated felony, to avoid deportation. The key is to get the CIMT charge amended to one that is a non-deportable crime. There are other measures that need to be taken to avoid the scrutiny of deportation scrutiny. Once the charge is reduced, the original police report cannot be used on the court record as a factual basis to establish the amended outcome.

Criminal charges can have a huge impact on immigration status. Immigration status can be changed Do not hesitate to hire a criminal defense lawyer that understands how to represent aliens facing criminal charges that can . You absolutely need to hire the best criminal defense lawyer if you are not a United States Citizen and you are charged with a felony or crime involving moral turpitude!

The prosecutor’s consent is required to get a plea bargain, or to get the charge reduced or amended to an offense that does not require deportation. The prosecutor may also need to obtain the consent of the victim. There may be other steps that we would recommend to insure a soft landing which may include: attending a counseling program paying restitution to the retail establishment and obtaining character letters. We have had extremely favorable results representing aliens charged with a CIMT, such as retail fraud or larceny, by getting the CIMT dismissed and amending it to a non-deportable charge such as “disturbing the peace” or disorderly conduct.

MUST READ if you have a CPL: Self-defense, keep yourself sharp, trained and well informed

November 5, 2020 | Abdo Law Firm

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:

Meeting the Eligibility for a CPL, CPL Denial for Select Misdemeanor Convictions & Brandishing a Firearm

November 5, 2020 | Abdo Law Firm

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:

Be at least 21 years of age.
Be a citizen of the United States or an alien lawfully admitted into the United States.
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.

Successfully completing an appropriate pistol safety training course or class.
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.

Not be prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under MCL 750.224f.
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.
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.

Macomb County Firearms Update: Carrying a Concealed Weapon and Current Gun Topics

October 31, 2020 | Abdo Law Firm

Michigan citizens are serious about their Second Amendment firearm gun rights

We are living in an unprecedented time. On top of the Covid-19 global pandemic, there are racial tensions, social unrest, unemployment, pandemic lockdown measures, social isolation and tumultuous politics. All of this friction is making people feel nervous, frustrated and afraid. There are conspiracy theories and fears that the election may bring about stricter gun laws. People are arming themselves in record numbers to feel safe.

Michigan Firearm Carry Laws

In the State of Michigan, it is always legal for an individual to keep a firearm at his or her residence and place of business. However, carrying a concealed weapon without a CPL in a motor vehicle, or other place outside of the home or business, is a felony that can carry 5 years in prison. Here are the basic rules in Michigan regarding open and concealed carrying of a firearm:

–Open Carry: In Michigan, it is legal for a person to carry a firearm in public (open carry) as long as the person is carrying the firearm with lawful intent and the firearm is not concealed. You will not find a law that states it is legal to openly carry a firearm. It is legal because there is no Michigan law that prohibits it; however, Michigan law limits the premises on which a person may carry a firearm. There is no such right to “open carry” a firearm in a motor vehicle unless it is being lawfully transported.

–Carrying a Concealed Weapon: You may conceal-carry a pistol in a motor vehicle and non-restricted places with a Michigan Concealed Pistol License (CPL) but it is a serious felony to carry a concealed weapon without a CPL.

-Concealed Defined: The carrying of a pistol in a holster or belt outside the clothing is not considered carrying a concealed weapon. However, carrying a pistol under a coat is carrying a concealed weapon. Attorney General Opinion 1945, O-3158. According to the Court of Appeals a weapon is concealed if it is not observed by those casually observing the suspect as people do in the ordinary course and usual associations of life. People v. Reynolds, 38 Mich App. 159 (1970).

–Transporting a pistol without a CPL: You may transport a pistol in a motor vehicle without a CPL if it is being transported for a lawful purpose and according to strict requirements (unloaded, separated from ammo and occupants).

MCL 750.227 is the Michigan Statute which makes it a felony to carry a concealed weapon: A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license. A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.

Transporting a Firearm in a Motor Vehicle

Michigan law details how firearms may be transported in a vehicle. MCL 750.227c and MCL 750.227d discuss the transportation of firearms, other than pistols, in vehicles. It is a felony for a person without a CPL to transport a pistol in a motor vehicle. MCL 750.231.a provides the exceptions to this rule. In general, the statute allows for transportation of a pistol for a lawful purpose which includes going to or from any of the following:

A hunting or target area
A place of repair
Moving goods from a home or business to another home or business
A law enforcement agency for a safety inspection or to turn the pistol over to the police
A gun show or place of sale or purchase
A public shooting facility
Public land where shooting is legal
Private property where a pistol may be lawfully used

Properly transporting a pistol requires that it be unloaded, kept in closed case designed for firearms, and in the trunk or not be readily accessible to the occupants if the vehicle does not have a trunk. There is no way to “open carry” a pistol in a vehicle. An individual, without a CPL or who transports a pistol in a vehicle without having a lawful purpose as stated above, may be in violation of MCL 750.227, the carrying concealed weapons statute.

Macomb County & Metro Detroit: Record gun sales in 2020

According to FBI data, 27 million guns, a record number, were sold in the United States in 2016. According to a CNN article, it expected that the gun sales record of 2016 will be broken before the end of this year. In September alone there was a 61% increase in gun sales from the same month in 2019. Gun retailers and industry analysts say its normal for Americans to stock up on firearms and ammo during an election year. According to the analysts, the surge is motivated by fears that a Democratic president might expand restrictions on gun ownership. But this year’s sales spike is different because it’s being driven by a rise in first-time gun buyers, especially among African Americans and women. Macomb County is mirroring the national trend with gun and ammunition sales up sharply in 2020 amid the Covid-19 pandemic and other concerns.

Felony conviction precludes possession or ownership of a firearm

CCW is classified as a felony. Pursuant to federal laws, a person convicted of a felony loses Second Amendment rights and cannot own or possess a firearm. Possession of a firearm by a convicted felon carries up to ten (10) years in prison.

If you are charged with CCW in the counties of Macomb, Oakland or Wayne, then you need an experienced criminal defense lawyer for felony representation to help you avoid a felony and retain your Second Amendment rights as is explained in more detail below.

Other Common Crimes Involving Firearms

A felony conviction means never being able to own a gun without restoring gun rights after a ten (10) year waiting period. Misdemeanor offenses do not preclude gun ownership or possession. However, most misdemeanor convictions will result in denial of CPL privileges for up to eight (8) years.

The following is a list of common firearm crimes that we are seeing in Metro Detroit (counties of Wayne, Macomb, Oakland and St. Clair):

Carrying a concealed weapon
Assault with a dangerous weapon
Carrying a concealed weapon in a motor vehicle
Brandishing a firearm
Reckless discharge of a firearm

It is illegal to own or possess a firearm if you get any type of felony conviction. If you have a CPL and get a misdemeanor conviction, you face denial of your CPL privileges for several years.

Avoiding a felony record is the only way to retain your gun rights

In 2019, there were a total of 5,810 incidents of felony CCW reported in the State of Michigan and several thousands of other crimes related to firearms. Get a local criminal defense lawyer if you are charged with CCW or any other felony in any city or township in Macomb County, Oakland County or Wayne County.

Depending upon the prior criminal record of the offender and the circumstances of each case, there is a strong possibility of avoiding a felony conviction. Even those with a criminal record, can ask for a deviation to get a felony reduced to a misdemeanor.

In Macomb County, the prosecuting attorney’s office has a protocol in negotiating a felony charge to a misdemeanor or under a special provision of law which can result in a dismissal. The Macomb County Prosecuting Attorney has authority over felony matters in the following courts:

37th District: Warren, Centerline
38th District: Eastpointe
39th District: Roseville, Fraser
40th District: St. Clair Shores
41-A District: Sterling Heights
41-A District: Shelby Township, Macomb Township, Utica
41-B District: Clinton Township, Harrison Township, Mount Clemens
42-1 District: Romeo, Washington Township, Armada, Richmond, Ray Township
42-2 District: New Baltimore, Chesterfield Township, Lenox Township, New Haven

In Wayne County, the prosecuting attorney’s office has a specially assigned attorney known as a “diversion attorney”. Diversion is a special status which can be assigned to a file that can result in NO entry of guilt and a complete dismissal at the end of a designated period of time. The file is essentially “diverted” from the criminal system.

Michigan Expungement Reform: Clean Slate Law

October 19, 2020 | Abdo Law Firm

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

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 4^th 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.

Resolution of Retail Fraud 1st, 2nd and 3rd Degree in the 41B District Court Located in Clinton Township

October 14, 2020 | Abdo Law Firm

GET A SECOND CHANCE: Dismissal of Retail Fraud in the 41B District Court

The 41B District Court is located at 22380 Starks Drive, Clinton Township, Michigan, 48038. This Court has jurisdiction which encompasses the geographic areas of Clinton Township, Harrison Township and Mount Clemens. It is trial court with full authority to handle all misdemeanor proceedings. A misdemeanor is defined as a criminal offense that carries up to 1 year in jail but does not carry prison time. The 41B District Court also handles felony cases from the early stages of arraignment, probable cause conference and preliminary examination.

The 41B District Court region is densely populated with big name national retailers (Walmart, Target, Lowes, CVS), retail strip centers and the Partridge Creek Mall which opened in 2007. This publication is about the crime of retail fraud (shoplifting) cases and how to get a positive result in the 41B District Court system.

Getting charged with retail fraud looks bad and sounds worse and is very embarrassing. Most of our clients charged with retail fraud are good people that have contributed to society and are afraid of being labeled a thief. In general, many of our clients express a personal problem by engaging in retail fraud and just need a wake up call. We have practiced criminal law extensively in the 41B District Court and have practiced longer than most law firms in Macomb County and Metro Detroit. I can say that in my nearly 40 years of practicing in this district, the 41B District is a court where the judges will give offenders a second chance as I will explain in this publication.

Penalties for Retail Fraud Depend on Prior Record of Offender and the Value of Property Involved

In Michigan, the crime of shoplifting is prosecuted as an offense known as “retail fraud“. Retail fraud crimes are classified according to degree based upon the value of property or money attempted to be misappropriated. An offense can also be enhanced to a higher degree if the offender has a past record for retail fraud.

1st Degree Retail Fraud, Felony: Maximum Penalty: Up to 5 years in prison, $10,000.00 fine, court costs. Value of Property or Money: $1,000.00 or more

2nd Degree Retail Fraud: Misdemeanor: Maximum Penalty: 1 year jail, $2,000.00 fine, court costs. Value of Property or Money: $200.00 but less than $1,000.00

3rd Degree Retail Fraud: Misdemeanor: Maximum Penalty: 93 days jail, $500.00 fine, court costs. Value of Property or Money: Under $200.00

Triple Penalty: In addition to the above penalties, the court has the option to impose a fine, or a penalty up to 3x the amount of property or money attempted to be misappropriated, whichever is greater.

Civil Demand Letter: Don’t be surprised if you get a letter with a demand for civil restitution soon after being charged with retail fraud. The criminal retail fraud matter will not be dropped just because this amount is paid. The civil demand for money and the criminal proceedings are separate and distinct matters.

Retail Fraud 3rd Degree is Most Common: Concealment, Altering Labels, Failing to Scan at Checkout

The offense of Retail Fraud 3rd Degree is the most common form of shoplifting which means that the amount or value of the property attempted to be taken without authority is under the value of $200.00. Retail fraud can be committed in many ways including by:

Concealment of merchandise
Altering labels or misrepresenting the price
Returning stolen merchandise
Attempting to defeat self checkout barcode scanned

If you find yourself in this position, stop worrying and thinking that you are a bad person. We have represented people from all walks of life that have never been trouble but get caught committing a petty theft offense and are required to deal with the court system for the first time ever. Don’t attempt to represent yourself unless you are 100% sure that you know how to deal with a Macomb County Prosecutor or city attorney assigned to the case. In addition, you will be judicially interrogated at some point in time. Saying the wrong thing can result in the case being scheduled for a jury trial and missing an opportunity to get out of the system. There are also proactive moves that can made to get the best possible outcome and reduce your time in the 41B District Court system. We can explain how to keep your record clean of any theft related offense even if you tell us that you are guilty of the crime. Our goals are always the same: AVOID CONVICTION & AVOID HARSH PENALTIES!

But I Didn’t Intend to Steal Anything and I had the Money in My Purse or Wallet to Pay…

We hear it all the time and so do the judges that preside over retail fraud cases: “I didn’t intend to steal anything, it was a mistake” and “why would I need to shoplift something when I had the money in my pocket or purse to pay for it.” Don’t fool yourself into believing that you can win your case with these assertions. Again, saying the wrong thing in the courtroom can get you stuck in system and lead to a devastating irreversible guilty verdict. You may be eligible to get the case dismissed without trial even if you are guilty.

Getting Out of the System with a Delayed Sentence and Dismissal!

If you are caught shoplifting, getting a skilled Macomb County criminal defense lawyer with experience handling retail fraud cases in the 41B District Court is is the right move if you want a shot at getting a second chance. Again, the 41B District Court has jurisdiction over matters that occur in Clinton Township, Mount Clemens and Harrison Township. As I have mentioned, it is important to know how to approach these matters with the prosecuting attorney and the judge. In other words, we will protect you from drawing attention to negative aspects of your case. Being successful in the majority of these cases means that we know how to identify a client with the prosecutor and the judge as an “isolated offender’. In doing so, we are able to get a dismissal of the offense after a period of probation under a special provision of law (MCL 771.1) known as a delayed sentence. There are also other possible results which include dismissals pursuant to HYTA for youthful offenders (age 18 but under age 26) or amending the offense to a non-theft infraction. Once a case is resolved or dismissed, the offender can obtain an official copy of the resolution or dismissal from the court. Legal proceedings have a way of following a person and getting solid proof of the disposition from the court is the best way to avoid misunderstandings and possible future complications associated with the underlying case.