Articles Tagged with 41b district court lawyer

youthful offender

Effective October 1, 2021

HYTA is available for youthful criminal offenders ages 18 – before age 26

This is why HYTA dispositions for criminal offenses are such a big deal:

  • The court does not enter a judgment of conviction,
  • The record is sealed,
  • You do not need to disclose the offense if asked if you have a conviction, and
  • The case is dismissed upon compliance with conditions laid out by the court!  

Michigan’s  newest version of the Holmes Youthful Trainee Act (HYTA) goes into effect on October 1, 2021. Prior to October 1, 2021, HYTA applied only to individuals under the age of 24. The latest rendition of Michigan’s HYTA statute provides youthful adult offenders (ages 18 but before age 26) with an opportunity to keep a criminal offense, including serious felonies, off of his or her permanent criminal record.  Dismissals pursuant to HYTA means that the offender avoids the stigma and public record of a criminal conviction. Subject to some exceptions, HYTA is available for most felonies and misdemeanors. A conviction is not required to be disclosed on an application for employment or education when an individual is given HYTA status. HYTA status can be taken away if an individual fails to comply with the terms and conditions ordered by the court.

HYTA is not available for juveniles (under age 18) or for offenders that are age 26 or older. However, there remain many other provisions of law that can benefit juveniles and adult offenders.

How do you get a HYTA disposition? Rule #1: HYTA applies only for those age 18 but before age 26!

Having an experienced criminal defense lawyer can mean the difference between getting HYTA or winding up with a conviction. Although HYTA requires a formal “plea of guilty”, the court does not enter a judgment of conviction and Michigan State Police records are sealed as soon as the court assigns an individual to HYTA status.

The are several parties to a HYTA disposition including the judge assigned to the case, the defense attorney, the prosecutor and the defendant. The crime victim and charging police agency may also have input when HYTA is requested.  According to the HYTA law (MCL 762.11), the prosecutor shall consult with the victim regarding the applicability of this section. The consent of the prosecutor may be required depending upon the age of the defendant at the time of the alleged offense:

  • Prosecutor’s consent is not required  for offenses committed on or after the offender’s 18th birthday but before his or her 21st birthday.
  • Prosecutor’s consent is mandatory for offenses committed on or after the offender’s 21st birthday but before his or her 26th birthday.

HYTA is not guaranteed and may be rejected by the court. Hiring an attorney that knows the laws and has excellent skills dealing with local judges, police and prosecutors is vital for those that want the best possible advantage in the legal system.

You can get HYTA more than once and other helpful information

The HYTA law has many special features including the following:

  • There is no limit on the number of cases which may be placed on HYTA status.
  • Juvenile offenders (under age 18) are not eligible for HYTA but may be eligible for a disposition in the juvenile system with the same result such as diversion or consent calendar.
  • HYTA is not guaranteed and may be rejected by the judge even if the prosecutor, police and victim consent.
  • HYTA may include jail, probation, counseling and restitution to any victims.
  • The court may require an individual that is given HYTA status to be drug/alcohol tested, maintain employment or attend high school.

The following offenses are not eligible for HYTA

The essence of HYTA is that it allows for eligible criminal offenses committed by youthful offenders to be dismissed and sealed. HYTA is available for most misdemeanors and felonies. However, the HYTA statute lists various offenses which are not eligible for HYTA status as follows:

  • Traffic offenses
  • Drunk driving
  • Major controlled substance offenses
  • Most offenses that under the criminal sexual conduct statute
  • A felony for which the maximum penalty is imprisonment for life.

Charged with one of the above ineligible offenses? Talk to a lawyer about ways to negotiate a plea bargain for a lower offense that qualifies for HYTA status!

HELP: Will anything show up on my record if my case is dismissed under HYTA status?

Our attorneys are asked this question every single day. As we have explained, HYTA specifically says that upon the court’s acceptance of HYTA status, there is no adjudication of guilt, the record is sealed and the case is dismissed upon compliance with any conditions spelled out by the court. The benefit of HYTA cannot be overstated. It is an excellent deal which we have used to get thousands of criminal charges DISMISSED. As far as the record of an individual is concerned after getting a case dismissed upon compliance with a HYTA disposition, we can only say that it will be sealed by the court and the Michigan State Police and the public will not be able to view your record.  Should anyone contact the court about your record after HYTA has been granted, the court employees are instructed to say: “THERE IS NO PUBLIC RECORD” and “THE EXISTENCE OF HYTA RECORDS CANNOT BE DISCLOSED“.

Unfortunately, HYTA protection is limited and does not mean that your record is destroyed, disintegrates or vanishes.  The history of all criminal cases, including those disposed of pursuant to HYTA status, are forever maintained by the court, FBI and Michigan State Police. In addition, Michigan law gives  certain entities (courts, law enforcement) access to HYTA records that would otherwise be classified as non-public. In addition to law enforcement agencies, other entities are also given access to HYTA records including: financial institutions, educational institutions, utility companies, and health care companies.

Most prevalent crimes are eligible for HYTA

Most non-traffic misdemeanors and felonies are eligible for HYTA status. HYTA status is available for all of the following common criminal offenses:

Although traffic crimes are not eligible for HYTA, we are often able to get them amended to avoid traffic points and a criminal conviction. HYTA is not available in the federal court system. However, the federal court system does have programs, such as diversion, that allows for a federal crime to be dismissed.

Can you lose HYTA status once it is granted by the court

A person that is given HYTA status remains on HYTA status until the end of a period of probation. There are always some rules and conditions that the court will impose for individuals that are given HYTA status. Violation of any rule or condition imposed by the court can result in losing HYTA status, abstracting the criminal conviction and imposition of further sentencing which could include jail. Getting charged with another crime while on HYTA status will always constitute a violation.  When a person is violated, the court will conduct a hearing to determine if a person will retain or lose his or her HYTA status.  In my opinion, most judges do not like to take away a person’s HYTA status and I would say that a judge will usually bend over backwards to allow a person to stay on HYTA. A HYTA violation  is a serious matter that requires a solid plan ahead of time that can make a difference in keeping or losing HYTA status. However, keeping HYTA status may have consequences such as serving some time in jail. Do not hesitate to consult with an attorney if you find yourself in this position.

Other Michigan provisions which are similar to HYTA

There are other laws which can be used in Michigan to get a criminal case dismisssed or under control which include: which can be resolved by laws which are similar to HYTA. They are as follows:

MCL 769.4a is used to get domestic violence offenses dismissed.

MCL 333.7411 is used to get drug crimes dismissed.

MCL 780.621 is Michigan’s “Clean Slate” or expungement law.

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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.

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