Articles Tagged with clinton township criminal lawyer

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41B District: How to Get a Second Chance if Charged with Retail Fraud 3rd Degree

The 41B District Court is located at 22380 Starks Drive, Clinton Township, Michigan, 48038. This Court has jurisdiction which encompasses Clinton Township, Harrison Township and Mount Clemens. It is trial court with full authority to handle all proceedings with respect to misdemeanor offenses that do not carry more than 1 year in jail.

The 41B District Court region is densely populated with national retailers (Walmart, Target, Lowes), retail strip centers and the Partridge Creek Mall which opened in 2007. This publication is about the crime of retail fraud (shoplifting) and how it can be managed with a positive result in the 41B District Court.

We have practiced criminal law extensively in the 41B District Court and longer than most law firms in Macomb County. 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: The retail business may send a letter requesting up to $200.00 from the alleged offender even before the case is within the court system. 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 commiting 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.

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 to pay for it.” Don’t fool yourself into believing that you can win your case with these assertions. These are old tired excuses that are likely to result in a guilty verdict at trial. I would say that these excuses honestly apply to a less than 5% of all retail fraud cases, yet we hear this from about 50% of the clients that come through our doors.  Again, saying the wrong thing in the courtroom can get you stuck in system and lead to a devastating irreversible guilty verdict.

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.  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. Upon compliance, the offender can obtain an official copy of the dismissal from the court to prove compliance and that the matter was dismissed. This often all that is needed to save someone future complications associated with employment or college applications.

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Part 1: Introduction to felony representation and considerations when hiring a lawyer if you are accused, charged or arrested for a felony (or any other criminal matter).

Part 2: Criminal investigations, plea bargaining and actual case results based upon local practices and our extensive experience handling criminal matters in the Macomb County courts.

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 35 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

Felony Representation Introduction

Our attorneys have handled OVER 10,000 criminal cases since 1980. Many of those cases qualified as felony offenses. Without a doubt, we know that being accused or charged with a felony can be a life changing event.

The Difference Between Misdemeanors and Felonies

In Michigan, and according to federal law, a felony is considered a crime of high seriousness punishable by imprisonment in excess of one (1) year up to life in prison. If punishable by exactly one year or less, it is classified as a misdemeanor. However, Michigan laws contain certain offenses which are known as “high court misdemeanors” that can carry up to two (2) years imprisonment. While a high court misdemeanor looks better than a felony, it is treated as a felony under federal law and has felony implications under state law.

Clients Charged with Felonies Rarely Fit the Profile of a “Felon” or Criminal

Misunderstandings, false accusations and unintended conduct can lead to serious felony charges. In addition, ignorance of law is not a defense in a criminal prosecution. For example, we have represented clients charged with felonies in all of the following scenarios:

  • Malicious Destruction: Key scratching a car where the victim alleges $1,000.00 or more in damage
  • Felony Drug Possession: Being in possession of drug residue or an innocent passenger in a vehicle where drugs are found.
  • Maintaining a Drug House: When drugs are found in your home or property that you long forgot about or that someone else left behind.
  • Uttering & Publishing: Preparing a check that does not belong to you even though the amount involved is nominal.
  • Receiving Stolen Property: Being an innocent stolen property.
  • Assault with a Deadly Weapon: Raising an object during an argument (assault with a deadly weapon)
  • Possession of Child Porn: Accidental or intentional downloading of inappropriate images (child port)
  • CSC 4th Degree: Touching someone who claims it was a sexual contact even though not intended to be (CSC 4th Degree)
  • Drunk Driving Felony: Being charged with Felony DUI because of 2 or more prior offenses that occurred in your lifetime, even 30 years ago
  • Fleeing and Eluding: Failing to stop when signaled by a police officer to do so.
  • Resisting and Obstructing: Resisting a lawful arrest or failing to comply with a demand by a law enforcement officer.
  • Strangulation: Engaging in a struggle with another and doing an act that “impedes normal breathing” can constitute a felony known as “Assault by Strangulation” punishable by up to 10 years in prison.

Any felony offense is a serious matter. However, most of our clients finding themselves charged with a felony do not fit the profile of a criminal and have not engaged in extreme or outrageous conduct. In fact, in our publication which covers the topic of Michigan’s most frequently charged felonies, we explain that marginal conduct, such as being in possession of drug residue which not capable of being used or measured, can result in serious felony charges that can lead to a conviction! If you find yourself in this predicament, do not waste time thinking that you can handle it yourself. Saying the wrong thing to a detective may put you in a worse position without you even knowing that you did so. Fortunately, a skilled criminal defense lawyer can manage most of the above mentioned matters where a felony does not go on your record, jail is not imposed and in some cases get the charge dismissed under special provisions of Michigan law (HYTA for youthful offenders age 17-23, MCL 333.7411 for first time possession of drugs, MCL 771.1 delayed sentence). Deals under these provisions can be limited based upon the age of the offender and/or the past criminal history of the offender. However, a past criminal history does not automatically rule out a favorble plea bargain in the criminal justice system. A consultation with an attorney is often necessary to find the right strategy for each person and each unique case.

Getting an Experienced Local Attorney is the Best Fit in Most Criminal Matters: Hiring a Lawyer Does Not Make You Look Guilty!!

Contrary to what the police might suggest to you if you are being accused of a crime; hiring a lawyer does not make you look guilty. Putting the shoe on the other foot, if a cop were facing criminal accusations, you can bet that he or she would “lawyer up” faster than the speed of light. 

An experienced criminal defense lawyer is able to explain the court proceedings and set realistic goals and provide a fairly accurate prediction regarding the outcome of the case. Getting a local attorney within the county where the offense occurred is a good start. Local attorneys with experience that know the courts, the prosecutors and the police are the best fit to give predictions regarding the outcome of a criminal case and answer questions such as:

  • Is jail a possibility?
  • Can a felony record be avoided?
  • Can the felony be reduced to a lower offense or misdemeanor?
  • What terms of probation is the judge likely to impose?
  • Will I have a criminal record?
  • Should I cooperate with the police (aka: snitch, act as an informant)?
  • Do I have to talk to the police if I am contacted by the police?
  • Do I have to take a polygraph (especially when it comes to sex crimes)?
  • How much will an attorney cost?
  • How bad is it for someone with a prior criminal record?
  • What can happen if there is a warrant for my arrest?
  • How much will bond cost?
  • What is involved if the case goes to trial?
  • Can the case be dismissed completely?

Cooperation, Police Interviews: Don’t be fooled into thinking that you have all of the answers to these questions because your best friend is taking a criminal justice class or because you have a friend that is  police officer. Each case and client is unique and the answers to these questions depend upon the individual circumstances involved. For example, we are generally against cooperation (becoming an informant) when a client is not comfortable doing undercover work or can otherwise get a good deal in the court system with an attorney standing up for his rights. An experienced criminal defense lawyer can also make recommendations regarding interviews with the police and polygraph examinations. Interviews with the police are a potential trap when one is not well prepared. In most cases, the police expect the accused party to deny the allegations.  The police will use the interview for other purposes such as: establish relationships, place the accused at the crime scene, establish motives and size up the accused’s credibility.

Some Tips When You Hire a Criminal Defense Lawyer

Hiring a lawyer is not something that anyone wants to do. WE KNOW that choosing a lawyer can be overwhelming and bewildering. Here are a few practical tips that can lead to a prudent decision in hiring a qualified lawyer:

  • Does the lawyer specialize in criminal law? I would say that this is the number 1 criteria in hiring a criminal lawyer. The legal profession has moved away from the days when attorneys held themselves out to the public as “general practitioners”.  An attorney that splits his time handling practice areas outside of criminal law is rarely a good fit. Specialties exist in every area of the law such as estate planning, family law real estate and personal injury. There are hundreds of laws on the books just in the area of drunk driving alone and several thousands more covering other major practice areas.
  • How do you know if the attorney is any good? This is a tough question to answer. I have had to hire lawyers three (3) times for various non-criminal situations. The process of hiring an attorney for me was not easy. So, I realize that the decision to hire one lawyer versus another is not quite that simple.  You may have a good recommendation for a lawyer which eliminates the arduous search process for an attorney. Fortunately, the internet has become a major resource of information, ratings and reviews  about lawyers if you do not have a recommendation.  If the lawyer is well represented on the internet (credible reviews, informative website, ratings by reputable services), or if you have a good impression after speaking to the lawyer or representatives of the law firm on the phone, you next should consider scheduling a first consultation to meet the lawyer face to face. Always ask if there is any fee for the first consultation. Most attorneys, including our firm, offer a free first consultation.
  • Are attorney ratings and reviews accurate? There is no easy answer to this question. Let me start out by saying that there are lousy attorneys that have excellent ratings and reviews and there are excellent attorneys with awful ratings and reviews. There are also attorneys that do not have an internet presence, do not seek reviews and just don’t want them for whatever reasons. Ratings and reviews need to be taken in stride. How do you really know if the reviews are from real clients are just harvested from the family and friends of the attorney? For example, you should be suspicious if an attorney has 100 reviews but is his fairly new to the business or has only been licensed for a short time.  The best thing to do is to read the reviews carefully. How far back do the reviews go? Are they consistent? Are they detailed or do they seem hyped or spurious? In addition to reviews, there are a number of organizations that provide ratings of attorneys. The oldest rating organization and most credible is Martindale Hubbell which has been in existence since 1868. The highest Martindale Hubbell rating is PREEMINENT, followed by DISTINGUISHED and then followed by NOTABLE. Other rating systems are utilized by AVVO and Yelp.
  • What if the attorney has had a grievance? Anyone can file an attorney grievance against an attorney. Criminal lawyers face the most grievances because of the nature of the business and because clients will find faults with the lawyer when the case does not go as planned. The State Bar does not take action for the vast majority of grievances filed.  However, the State Bar can take disciplinary action against an attorney for major violations, such as commission of a crime, or minor violations, such as failing to communicate with a client. An attorney with a history of grievances may not be a good fit. On the other hand, just because the State Bar has taken action against an attorney does not mean that the attorney is ineffective or unqualified. Like reviews and ratings, you will need to decide whether an attorney with a prior grievance should be avoided or considered for representation.
  • Do attorneys really give phone consultations? Yes, some attorneys, not all, will discuss your case on the telephone or provide internet “chat” discussions. Phone consultations can be a good starting place in the search for a lawyer.  However, there are limitations to the amount of time and advice that can be provided on the telephone or in chat discussion scenarios. Our firm offers phone consultations subject to time constraints and other realistic considerations. In our phone consultations, we like to obtain the most pressing information: Brief client history (drugs, marriage, employment, children), Nature of the charges, Court where the case will be heard, Prior lifetime record of the accused party, Name and phone number of the detective, Whether the accused party has posted bond or is in jail.
  • What should I expect at the first consultation?  The first meeting with an attorney is an excellent opportunity to get an initial impression about the attorney, the office and the staff. For complex criminal cases, there are limitations as to the extent of time and advice that can be dispensed at your first meeting. At the very least, your attorney should be able to cover any pressing matters (acting as an informant, making a statement to the police, forfeiture of assets, setting up an arraignment, quoting a fee, visiting the client in jail). Once hired, the attorney will order your police report and dig further into the underlying case which will facilitate preparation of a solid defense.  For routine matters, an attorney is likely able to provide a thorough analysis of the case from beginning to end with coverage of: the expected outcome, whether there will be a criminal record at the conclusion of the case, the likely terms of sentence (jail/probation), the approximate fines and costs and whether there is any chance of getting the matter dismissed, reduced or amended.
  • How much will it cost to hire a lawyer for criminal case? Lawyers have several ways that they charge for their services. We have adopted a fixed flat fee policy to handle just about every type of criminal, drunk driving and traffic case. The fixed flat fee arrangement means that an exact cost is charged for legal services thus eliminating the mystery associated with hourly rates and other vague fee agreements.  Hourly rates on the other hand can be intimidating especially when an attorney cannot give a prediction or estimate as to how much time/hours the entire case will entail. In addition, attorneys that bill on an hourly basis do so for every phone call, text message, email and while they are driving to court and waiting in courtroom for the case to be called. Attorney fees will also depend upon the prior criminal history of the client, the seriousness of the offense, the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the time limitations imposed by the client or by the circumstances and the experience, reputation, and ability of the lawyer or lawyers performing the services.
  • Who is responsible for out of pocket costs and expenses associated with my case? Sometimes it is necessary to employ outside resources/services to assist in the defense of a criminal case.  The costs or expenses that are paid to outside parties for their services are referred to as out of pocket costs. Out of pocket costs are always the responsibility of the client and all attorneys will seek reimbursement accordingly. The following are examples of out of pocket costs: employing a private investigator to obtain witness statements, forensic analysis of evidence, expert witnesses, private polygraph examination and extensive costs associated with discovery, copies and postage.
  • Should I get a court appointed lawyer? The Right to Counsel in criminal proceedings is guaranteed by the 6th Amendment to the United States Constitution. Should you be charged with a crime and unable to afford an attorney, the court will appoint an attorney to provide representation. Some attorneys are willing to accept court appointed cases. You do not get to choose your court appointed attorney. The court will select an attorney from a list or the matter will be referred to Macomb County Judicial Aide for handling.

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Part 1: Introduction to felony representation and considerations when hiring a lawyer if you are accused, charged or arrested for a felony (or any other criminal matter).

Part 2: Criminal investigations, plea bargaining and actual case results based upon local practices and our extensive experience handling criminal matters in the Macomb County courts.

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 35 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

The outcome of a felony is dependent upon a number of variables. The local practices of the prosecutor and the judge are a few of those variables. For example, our criminal caseload is comprised of matters (misdemeanors and felonies) which arise in the Metro-Detroit (Macomb, Oakland, Wayne and St. Clair) with the majority of cases in the following Macomb County courts:

Macomb County District Courts:

  • 37th District: (Warren, Centerline) 8300 Common Rd, Warren, MI 48093
  • 38th District: (Eastpointe) 16101 E 9 Mile Rd, Eastpointe, MI 48021
  • 39th District: (Roseville, Fraser) 29733 Gratiot Ave, Roseville, MI 48066
  • 40th District: (St. Clair Shores) 27701 Jefferson Ave, St Clair Shores, MI 48081
  • 41-A District: (Sterling Heights) 40111 Dodge Park Road, Sterling Heights, MI 48313
  • 41-A District: (Shelby Township, Macomb Township, Utica) 51660 Van Dyke, Shelby Charter Township, MI 48316
  • 41-B District: (Harrison Township, Clinton Township, Mt. Clemens) 22380 Starks Drive, Clinton Township, MI 48038
  • 42-1 District: (Romeo, Washington Township, Richmond, Ray, Bruce, Armada)  14713 33 Mile, Romeo, MI 48065
  • 42-2 District: (New Baltimore, Chesterfield Township, Lenox, New Haven) 35071 23 Mile Rd, New Baltimore, MI 48047

Almost anyone charged with a felony is mostly concerned about their criminal record and the possibility of jail time. First of all, let me say that a felony conviction does not automatically mean jail time. In fact, most felony crimes can be managed where the person will be placed on probation and not placed in jail. This is especially true for offenders who do not have any prior criminal record. There is even hope for those with a prior criminal history to get plea bargains and avoid jail. In addition, we have had a high success rate in getting felony cases resolved where there is no felony record by getting the charges reduced to misdemeanors or dismissed under special provisions of Michigan laws.

Felony Procedure: Cases begin with an investigation

An investigation may be instituted with the police which later results in a felony warrant. A warrant may be issued without you knowing it or you may be arrested for a crime that is reported or witnessed by the police. If you are being accused of crime or the subject of an investigation, GET A LAWYER. An arrest on the other hand is not usually planned so having a lawyer at the moment you are arrested is not probable. However, GETTING A LAWYER as soon as you are able to do so is essential.

Plea Bargaining: Good or bad?

Plea bargaining (negotiating a plea agreement) is a process that occurs in criminal cases between the defense attorney and the prosecutor whereby an agreement is made to amend/lower/dismiss the charges.   The defense attorney’s goal in plea bargaining is to get the charges lowered as much as possible and for leniency in the court system.

Plea bargaining can occur during a criminal investigation, or at any time after criminal charges are instituted in the court system. It can also occur during trial proceedings or at any time before a jury returns a verdict.

Not just in Michigan, but in every court in the United States, resolution of criminal cases is dominated by plea bargaining. The United States Justice Department estimates that 90% or more of all criminal cases are resolved by plea bargaining. Based upon our experience, this holds true for the criminal cases that are handled in the Macomb County courts.

So is plea bargaining good or bad? For the most part, plea bargaining has many advantages that can lead to a favorable disposition of a criminal case and avoid exposure to a guilty verdict at trial on the original charges. Plea bargaining can depend on the policy of the prosecutor and the effectiveness and skill of a well prepared criminal defense lawyer that knows the system. Plea bargaining can be used as vital defense tool at any stage of the criminal proceedings to:

  • Obtain sentencing under a special provision of law where a dismissal is eventually granted.
  • Avoid a felony conviction by reducing a felony a misdemeanor.
  • Have multiple charges dismissed or consolidated into  single charge.
  • Get a felony lowered to escape sentencing under higher felony sentence guidelines.
  • Obtain an agreement that other possible criminal investigations will not result in prosecution.
  • Avoid a crime that results in loss of driver’s license.
  • Avoid conviction to a crime that carries a mandatory jail sentence.
  • Avoid conviction to a crime that requires Sex Offender Registration.
  • Retain rights to own or possess firearms by avoiding a felony conviction.

Here are some examples of cases that our firm has handled that resulted in a favorable plea bargain or a dismissal in the early stage of criminal proceedings:

  • Sterling Heights/Embezzlement: Our client had authority to handle her friend’s financial affairs. The friend died and his family members were seeking criminal charges against her for larceny and/or embezzlement as a trustee. However, our firm spoke with the detective regarding her relationship and explained that she had authority to pay bills and have access to the finances of her friend. Criminal charges were not filed.
  • Roseville/False Pretenses: A landlord contacted our office about a possible criminal charge of “false pretenses” being investigated by the Macomb County Prosecutor’s Office. Apparently, the landlord took a deposit on a rental property but rented out the property to another person. Although there were many misunderstandings in this case, our recommendation to our client was to provide a total refund of the deposit to avoid a felony charge, legal fees and potential guilty verdict. Criminal charges were not filed.
  • Shelby Township/Home Invasion: An exceptional result was achieved for our client who was charged with home invasion in the 41-A District Court. Since this case involved a victim of a crime, our client needed to show appropriate remorse. In addition, we were able to make full restitution to the victim for before the Court date. The felony charge was reduced to a misdemeanor which will be dismissed if our client stays out of trouble for one (1) year.
  • Clinton Township/Felony Drunk Driving: Our client was charged with felony drunk driving (3rd offense). In 2010, we were able to reduce the drunk driving felony, which could carry a maximum of 5 years in prison, to a misdemeanor offense in the 41-B District Court with no jail. The Court was impressed with the fact that our client was proactive by attending a substance abuse counseling program and several AA meetings.
  • Clinton Township/CSC 4th Degree: Our client admitted to inappropriate touching of a female friend. He made a confession to the police (without a lawyer) which resulted in criminal charges. He told the police that he thought he had consent from the victim. Our firm held the preliminary examination and introduced evidence which persuaded the prosecutor to reduce the sex crime to simple misdemeanor assault and battery before trial.
  • Macomb Juvenile/False Threat of Terrorism: We have handled several cases involving false threats of terrorism. In 2018, we were able to have 2 of our cases handled on the “consent calendar” which will result in a dismissal and NO record after a period of probation. In getting the prosecutor’s approval, we submitted numerous character letters beforehand. We also had our clients obtain a psychological evaluation to rule out any propensity for violent or predatory conduct.
  • Warren/Resisting Police: In 2011, our client was charged with resisting and obstructing after he consumed various drugs and was confronted by the police. On the date of the preliminary examination in the 37th District Court, we negotiated a reduction of the felony to a misdemeanor, attempt fleeing and eluding. The court agreed to delay the sentence and dismiss the offense if the person complies with the terms of his probation which include random drug testing.
  • St. Clair Shores/Tampering with Evidence: Our client was a precious metals dealer who was charged with tampering with evidence, a felony which can carry up to 4 years in prison. The prosecutor’s case, along with our possible defenses, had some weakness. We eventually negotiated a misdemeanor plea in the 40th District Court with no probation; thereby meeting our client’s goal to avoid a felony conviction.

Plea bargaining is not without its critics and flaws. Those that are impoverished or cannot afford trial are especially vulnerable to accepting a plea bargain. In addition, plea bargaining favors the prosecutor in cases where the prosecutor engages in overcharging and offers to dismiss charges in exchange for a guilty plea to others. Similarly, prosecutors may threaten to raise the charge to one that carries a higher penalty should a defendant not enter into  a plea bargain. Unfortunately, we have seen all of these abuses occur in the criminal justice system. But for the most part, plea bargaining remains an excellent tool in the arsenal of defense attorneys that know how to utilize the process in favor of their clients. Continue Reading

 

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Part 1: Introduction to felony representation and considerations when hiring a lawyer if you are accused, charged or arrested for a felony (or any other criminal matter).

Part 2: Criminal investigations, plea bargaining and actual case results based upon local practices and our extensive experience handling criminal matters in the Macomb County courts.

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 35 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

The topic of criminal procedure refers to the process in which a criminal case moves through the legal system and the court system.  It is important to understand that an entire library of books has been published covering criminal procedure. This publication is intended to give a concise explanation of the criminal process and the legal terminology utilized. In addition, we will discuss criminal defense legal strategies and goals that are relevant at various stages of the criminal process. We are confident that you will find this information invaluable and not available by other attorneys to extent we have provided in this publication.

1. Criminal Investigation

The initial stage in the criminal process is the criminal investigation. A criminal investigation begins when the police have received a police report or have other reasons to suspect an individual of criminal activity. The accused party may never know of the investigation which could result in the matter being closed or the issuance of an arrest warrant. Criminal investigations are conducted by an officer or detective assigned to the case. At this level, witness statements are obtained and the accused party may be contacted for an interview. A person accused of a crime is not required to make any statements to the police pursuant to the 5th Amendment of the United States Constitution. An investigation may take a matter of days or months before it is presented to the prosecutor for authorization.

2. Whether or Not to Talk to the Police

As I stated, there are strategies at every stage of the criminal process that experienced criminal defense attorneys use to gain an advantage in the criminal system. In general, a person accused of crime should NOT speak to the police without the advice of a experienced criminal defense lawyer. Our criminal defense lawyers will look at whether there is any advantage or future benefit by scheduling a police interview. There have been cases where our clients have fully admitted to a crime and we have agreed to a police interview for the purpose of showing good faith and offering restitution at the earliest phase of the criminal process. This strategy is not one that we adopt 100% of the time. I will only consider it if the client fully understands his or her right to remain silent and there is strong evidence or a paper trail that is highly incriminating and a verdict of guilty is inevitable.  Conversely, I would advise against it when the police do not have any evidence to connect our client with a crime. Each case has its own unique facts and circumstances and strategic decisions can only be made on a case by case basis!

2. Request for Authorization of Warrant

Once the police have completed an investigation, the report (witness statements, evidence) is taken to the prosecuting attorney for review. The prosecutor may consider issuing a warrant at this time, seeking a search warrant or dismissing the request for authorization. A request for a warrant is subject to authorization if the prosecutor reasonably believes that there is probable cause to support the stated charge(s).

3. Warrant for Arrest Issued: Defendant may be arrested or may receive a notice to appear in court.

Once a warrant is authorized by the prosecutor, the officer in charge of the case submits the matter to the court with jurisdiction over the matter to officially approve the warrant and enter it into the system. This is also when the warrant is reported to the Michigan State Police and entered in the Law Enforcement Information Network (LEIN) There are two (2) possible scenarios after a warrant is entered into the court system; the accused party (the defendant) is arrested by the police or the accused party receives a notice from the court to personally surrender himself/herself to the court or police to answer the warrant.

4. Arraignment (Felony Arraignment starts in the District Courts)

The arraignment is the first stage in the criminal process when the accused party (the defendant) appears in a courtroom before a district court judge or magistrate. The following districts courts are located in Macomb County:

Locations and Links for the Macomb County District Courts:

  • 37th District: (Warren, Centerline) 8300 Common Rd, Warren, MI 48093
  • 38th District: (Eastpointe) 16101 E 9 Mile Rd, Eastpointe, MI 48021
  • 39th District: (Roseville, Fraser) 29733 Gratiot Ave, Roseville, MI 48066
  • 40th District: (St. Clair Shores) 27701 Jefferson Ave, St Clair Shores, MI 48081
  • 41-A District: (Sterling Heights) 40111 Dodge Park Road, Sterling Heights, MI 48313
  • 41-A District: (Shelby Township, Macomb Township, Utica) 51660 Van Dyke, Shelby Charter Township, MI 48316
  • 41-B District: (Harrison Township, Clinton Township, Mt. Clemens) 22380 Starks Drive, Clinton Township, MI 48038
  • 42-1 District: (Romeo, Washington Township, Richmond, Ray, Bruce, Armada)  14713 33 Mile, Romeo, MI 48065
  • 42-2 District: (New Baltimore, Chesterfield Township, Lenox, New Haven) 35071 23 Mile Rd, New Baltimore, MI 48047

Once a case enters the court system, the accused party is referred to as the DEFENDANT. The defendant is required to personally appear for a felony arraignment. For  misdemeanor arraignments, some courts will allow the formal arraignment to be waived. If the defendant is incarcerated, the arraignment may occur via a video link between the courtroom and detention facility or the defendant may be transported to the courthouse by law enforcement officers.  The formal charges against the defendant are set forth in a document called the COMPLAINT. The following matters are covered at the arraignment:

  • The COMPLAINT is formally read
  • A Plea is entered (NOT GUILTY or STAND MUTE)
  • Bond is set (personal bond, cash bond, surety or 10% bond)
  • Bond conditions are set (drug/alcohol testing, no contact orders, house arrest, GPS monitoring)
  • Probable Cause Conference and Preliminary Examination are scheduled

For all felony matters in the Macomb County District Courts, the court will only a accept a plea of NOT GUILTY or STAND MUTE. A plea of GUILTY will not be entertained at this stage of the proceedings for the protection of the rights of the accused party to obtain a lawyer, obtain the police reports and pursue other rights including preliminary examination and trial.

Bond is an important component of the arraignment. The court has the power to impose a high cash bond and impose restrictions upon the freedom of the defendant which may include: travel restrictions, no-contact order, house-arrest, drug and alcohol testing. It is not always possible for an attorney to be present at the arraignment. This is true when someone is arrested and is unable to retain a lawyer on-the-spot or is brought to court without sufficient time to secure representation. Whenever possible, the presence of a local attorney is advisable at the arraignment. An attorney can make a difference in the amount of bond that is set (cash or personal) and have an influence on the bond conditions.

5. Discovery (Defendant is entitled to all reports, witness statements, evidence)

The US Constitution affords each citizen DUE PROCESS in the court system. In plain English, this translates to include the right to obtain all of the available evidence in all criminal or civil proceedings. The process to obtain evidence from adverse parties in a criminal case is known as discovery. A request for discovery is filed with the prosecutor at the earliest opportunity in a criminal case. A court order can be obtained to facilitate a discovery request. In addition, a party that fails to comply with a discovery order in bad faith, or engages in obstructive discovery tactics, is subject to censure, court sanctions and precluded from introducing evidence that should have been disclosed.

Sterling Heights/Carjacking: In a recent case handled by our firm arising out of the City of Sterling Heights, our client was charged with robbery/carjacking based upon being picked out of a lineup and being found near the location where the stolen car was discovered. Our client had good credibility and passionately denied the commision of the crime. We worked persistently to obtain the discovery that eventually PROVED OUR CLIENT WAS INNOCENT even though the case could have moved forward based upon the identification and other negative circumstances. There were similarities in the facial features of our client and the perpetrator. Fortunately for our client, we were able to obtain:

  • Cell phone tower records (proving our client was not at the scene of the crime
  • DNA of a garment found in the vehicle (DNA did not match our client)
  • Fingerprints on the vehicle (Not a match of our client)
  • Smart Bus video (Our client said he used the bus on the day of the incident. we learned that Smart Bus videos are retained for 30 days and if there is an incident, for 1 year).

The DNA on a garment found in the vehicle was traced to another person who was eventually charged with the crime. In the end, our client was FREE and the CASE DISMISSED after serving 100 days in jail while we unturned every stone to gather evidence that exonerated him.

6.  Probable Cause Conference (PCC)

As part of the arraignment, the accused party will be provided with dates to return to the district court for a Probable Cause Conference (PCC)  and Preliminary Examination (PE). As I have stated, there are opportunities to resolve criminal matters at every stage of the proceeding, including the PCC and PE.

According to the Michigan Statute, MRE 6.108The probable cause conference shall include discussions regarding a possible plea agreement and other pretrial matters, including bail and bond modification.

There are a number of possible scenarios that can occur at the PCC: negotiations to dismiss charges, reduction of a felony to a misdemeanor, disposition of the case at the district court, agreement to plea to a lower felony in the circuit court, disposition to have the matter dismissed with application of HYTA or MCL 333.7411, adjournment of the matter to file a deviation request. Unless waived, the Preliminary Examination will follow when a matter cannot be resolved or it is requested by either the defense or prosecutor.

7. Preliminary Examination: Probable Cause Burden of Proof

The right to a Preliminary is found at MRE 6.110: The people and the defendant are entitled to a prompt preliminary examination. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. Upon waiver of the preliminary examination, the court must bind the defendant over for trial (to the circuit court) on the charge set forth in the complaint.

A Preliminary Examination should not be compared to a trial: The “PROBABLE CAUSE” standard or burden of proof is used at the Preliminary Examination stage of a felony proceeding. This standard is much lower than the burden of proof (BEYOND A REASONABLE DOUBT) required at the trial stage.

MRE 6.110 (E) provides: If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial.

There are a number of strategic reasons that we recommend “holding” the preliminary examination and reasons why we may recommend “waiving” it (not holding it). When we can score points or gain any advantage, we would recommend holding the PE. When the charges are not supported by the evidence or a witness is expected to fall apart on the stand, we will always hold the PE. Holding a PE may be an excellent opportunity to expose a bad case to the prosecutor and judge that could lead to dismissal or a favorable plea deal. However, don’t be fooled into thinking that your case will be dismissed if you hold the Preliminary Examination. If the court finds that additional charges are supported by the evidence according to the low probable cause standard, they can be added after the PE is held.  And, you can count on the prosecutor to threaten to add additional charges if the PE is held.

8. CIRCUIT COURT: Arraignment on the Information

The Arraignment on the Information will occur in the circuit court for felony matters that are waived at the district court level or bound over after a Preliminary Examination is held. The “Information” is the formal charging instrument utilized once a case is entered into the system at the circuit court level. In Macomb County, felony matters will be scheduled at the Macomb County Circuit Court for future proceedings following a “waiver” or “bind-over” in the district courts. The Macomb County Circuit Court is located at:

  • Macomb County Circuit Court: 16th Judicial Circuit Court, 40 N. Main, Mt. Clemens, MI 48043, Phone: 586-469-5150

The Arraignment on the Information is similar to the Arraignment in district court. The court will read the Information and consider whether bond conditions will remain the same or be amended. Bond can be revoked if it determined that the defendant is a possible flight or community risk, or if there have been any bond violations (failed drug tests, violated a no-contact order). Other business that can occur at this stage at the Arraignment on the Information stage are:

  • Entering into a plea bargain
  • Scheduling motions
  • Setting a formal pretrial conference
  • Setting the case for trial

9.  Motions (Requests to the court to facilitate the defense)

Motions are formal requests made by either the prosecutor or defense attorney asking for the court to answer or respond with a court order. Motions can be filed AT ANY TIME DURING THE COURT PROCEEDINGS to address trial issues, admissibility of evidence, bond conditions, dismissal (based upon lack of evidence) and for other reasons to protect the rights of the accused party.  Strategically filed motions may be used  as a tactic to reveal something obscure or personal (psychological record, old police report) that may tend to facilitate a plea bargain or dismissal of the charges.

10. Trial: Right to a Jury Trial Pursuant to the 6th Amendment of the US Constitution

The trial in a criminal case is an adversarial proceeding where the burden is on the prosecutor to present evidence and prove guilty BEYOND A REASONABLE DOUBT. The defendant has the following rights at trial:

  • To be presumed innocent.
  • To remain silent (the defendant is not required to testify)
  • To confront and cross examine witnesses
  • To present a defense to the allegations contained in the Information

Jury Selection: The jury selection process gives the prosecutor and defense an opportunity question prospective jurors, eliminate unfavorable jurors and shed some light on the case at bar. The process of questioning jurors is called VOIR DIRE. Attorneys may eliminate an unlimited number of jurors for cause (prejudice, bias, discrimination). Jurors can also be eliminated without cause (peremptory challenge). A peremptory challenge does not require any reason but each party is limited in the number of peremptory challenges (12 if the matter carries up to life in prison, 5 for other felony matters).

The Trial: Once a jury is selected, opening statements are made to the jurors. After the prosecutor and defense have made opening statements, the prosecutor will present its case first followed by the defense presenting its case after the prosecutor rests. After the defense rests, the prosecutor makes a closing argument followed by the defense closing argument.

Possible Verdicts, Hung Jury, Mistrial: A verdict by a jury in a criminal case must be unanimous. The possible verdicts in a criminal case are: guilty or not guilty. A jury may consider a verdict to a lower or lesser offense(s) when given this option by the jury instructions. When the jury cannot reach a verdict, it is called  hung jury (DEADLOCKED). The court may consider a mistrial because of irregularities or errors during the trial or during jury deliberations.

11. Pre-Sentence Investigation

Upon a plea of a guilty or a finding of guilty after trial to a felony, the court is required to obtain a pre-sentence investigation report to facilitate a fair sentence. The report is prepared based upon the facts of the case, the background of the defendant, substance abuse history of the defendant and criminal record of the defendant. The report also contains a recommendation regarding the sentence which is influenced by any existing sentence agreement and the Michigan Sentencing Guidelines. The court is not required to follow the recommendation within the pre-sentence investigation report and may exceed the recommendation or sentence below the recommendation.

12. Sentencing Phase

The possible sentence that can be imposed in a felony matter will depend upon numerous variables including:

  • The Pre-Sentence Investigation Report
  • Statements by any victims
  • The prior criminal history of the defenant
  • The Michigan Sentence Guidelines

The courts in Michigan are no longer required to sentence within the Michigan Sentencing Guidelines which are now considered to be advisory. Michigan has adopted a sentence policy in favor of “proportionality” to avoid unfair application of variables that are factored into the Michigan Sentencing Guidelines.  Our firm has a policy of filing our own Sentence Memorandum to bring matters to the court’s attention that it would not otherwise be raised. When filing a Sentence Memorandum, we will attach supporting documentation such as character witness letters, psychological/mental health reports, proof of AA meetings, military records, proof of charitable/volunteer services and any other positive documentation that we may deem helpful.

  • Sentence: Probation, Incarceration, HYTA, MCL 333.7411, Delayed Sentencing: As we explain throughout our website and blogs, there are a number of provisions of laws to get a plea deal and sentence whereby an offender can earn a dismissal, sentence leniency, probation and outcomes that don’t necessarily involve incarceration.
  • A word about jail: Jail is not our favorite topic. However, any attorney that practices criminal law extensively and takes on challenging cases will have a fair share of clients that wind up getting jail. On the other end of the spectrum, there are criminal defense attorneys that spend their entire careers taking on routine cases that never go to trial and avoid difficult cases or clients that may be facing jail. We do not shy away form cases where jail is a possibility and we have had excellent results keeping clients out of jail, and even out of prison, when the odds are against it. This is something that we have been able to do for individuals with bad criminal records or that are charged with offenses carrying life in prison.

13. Probation Violations & Motions to Modify Probation 

Probation Modification, Violations, Successful Completion: Once a person enters a plea of guilty or no-contest, or is found guilty after trial, or is placed on a special sentencing sentence (frequently mentioned HYTA, MCLA 333.7411, Delayed Sentencing), the court can place the individual on probation. The maximum term of probation that can be imposed for a misdemeanor is 2 years and 5 years for a felony. Upon successful completion of probation, the individual is discharged from the court system. If a person has been granted HYTA or MCLA 333.7411, the matter will be dismissed upon successful completion of probation. While on probation, a person may ask the court to modify the conditions. A request for probation modification can be made by having a attorney file a motion and scheduling a hearing before the sentencing judge originally assigned to the case. Any reasonable request can be stated in a motion to modify probation including: termination of further probation, reduction or termination of random testing, removal of no-contact order and request to allow travel. If a person violates any term of probation, the court will schedule a probation violation hearing. Since a person may be placed in jail or lose a special sentencing status (HYTA or MCLA 333.7411), the representation of an attorney specializing in criminal law is crucial at a probation violation hearing.

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The 41B District Court located at 22380 Starks Drive, Clinton Township, Michigan 48038, phone: 586-469-9300.  It has jurisdiction to handle civil, traffic and criminal cases arising in Clinton Township, Harrison Township and Mount Clemens. Clinton Township has its own police department while Harrison Township and Mount Clemens are policed by the Macomb County Sheriff’s Department. The Court is served by Judge Sebastian Lucido, Judge Linda Davis and Judge Carrie Lynn Fuca.

As I state in this publication, it is my opinion based upon several years of experience, that the 41B District Court will give a person a second chance and has a philosophy to encourage rehabilitation rather than impose jail. 

41B District Court has an expansive jurisdiction that covers Macomb County from Lake St. Clair in Harrison Township to Hayes Road on the Sterling Heights border, and from 14 Mile Road to Hall Road. The area has a diverse mixture of established and newer real estate, shopping centers, Macomb County Community College, county government offices and the Partridge Creek Mall. The Macomb County Sheriff’s Department and the Clinton Township Police are the predominant law enforcement agencies in the area.

Criminal Cases in the 41B District Court: Provisions of Law to Get Dismissals Available!

The 41B District gets a wide range of the criminal cases that occur within Macomb County.  Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 41B District Court. The following is list of some of the most prevalent cases that we regularly see on the 41B District Court’s docket:

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 41B District Court, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. I have found that the judges and the magistrate will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise take.  In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

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

The outcome of a criminal case in the 41B District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

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

In our experience, criminal cases can be resolved favorably at the 41B District Court. All these special provisions of law are possible in the 41-B District Court which can result in a dismissal of a criminal matter:

  • HYTA for youthful offenders (age 17 to 23)
  •  MCL 333.7411 for first time drug offenders
  • MCL 769.a for domestic violence.
  • Delayed Sentence or Deferral

Drunk Driving Cases in the 41B District Court

1st offense drinking and driving: The 41B District Court is known for imposing hefty fines and costs for first time drinking and driving offenders.  For most first time drinking and driving offenders, jail is not likely in the 41B District Court absent some other aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired‘ in the 41B District. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. Non-reporting probation, reporting probation and counseling may also be imposed depending upon the circumstances. Those with a history of alcohol or substance abuse, or that register a high blood alcohol content (BAC), can expect a longer period of counseling. Fortunately, the judges in the 41B District Court have a sentencing philosophy that encourages rehabilitation rather than incarceration.  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 $1,500.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program
  • Possible drug testing, alcohol testing, AA meetings
  • 4 points on driving record

There are other mandatory and discretionary sanctions associated with a drinking and driving conviction including: driver responsibility fees, probation oversight expenses and vehicle immobilization. The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of a drinking and driving offense.

If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense. In 2016, there were approximately 140 arrests for operating while intoxicated related offenses in Clinton Township and 50 registered a BAC of .17 or more.

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

The 41-B District Court Probation Department: 22380 Starks Drive, Clinton Township, Michigan 48038

The 41-B District Court has its own probation department located inside of the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years.

Isolated Incidents, Not Likely to Re-offend: There are many instances where we have advocated for ZERO probation, or for an abbreviated period of probation, on behalf of clients that are not likely to re-offend.

Traffic Violations in the 41B District Court: Reduced to Avoid Points and Record of any Conviction!

Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 41B District Court. Gratiot Avenue, Metro Parkway, a stretch of I-94 and Hall Road all contribute to the traffic volume in the 41B District Court.  When resolving a traffic matter in the 41B District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident

The court staff and judicial officers are forbidden by law to provide you with legal advice. Yet many courts are now making it easier than ever to just pay your traffic ticket by visiting the court’s website and conveniently providing an option to pay by credit card.  Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.  Another publication by our firm explains why you should fight every traffic ticket.

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