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41A-SHELBY-DIVISION

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

Macomb County’s 41A District Courts

There are 2 divisions of the 41A District Courts located in Macomb County which which cover distinctly different geographical regions of Macomb County.

41A-1 District Court, Sterling Heights Division

41A-2 District Court, Shelby Division

Map of the Macomb County District Courts

The jurisdictional boundaries of the 41A District Courts are expansive. The Sterling Heights division has jurisdiction over the entire city of Sterling Heights from 14 Mile Road to Hall Road. Sterling Heights has its own police department. The Shelby Township division covers a much larger geographical area which includes all of Shelby Township, Macomb Township and the City of Utica. The Shelby division is policed by the Shelby Township Police and the City of Utica Police. Macomb Township employs the Macomb County Sheriff Department for police services as it does not have its own police force. The image below provides a map of the geographical areas covered by each Macomb County District Court:

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Types of Cases Handled in the 41A District Courts

Michigan’s district courts have jurisdiction to handle traffic, criminal and civil proceedings. There are certain limitations to the power the district court has over civil and criminal proceedings.

  • Misdemeanor criminal jurisdiction: The district courts have complete jurisdiction of misdemeanors from arrest warrant, arraignment through trial and sentencing.
  • Felony criminal jurisdiction: The district courts have limited jurisdiction over felony matters which includes arrest warrant, arraignment, probable cause conference and preliminary examination. Felony cases that are not resolved in the district court are moved to the circuit court following a probable cause conference or preliminary examination.
  • Traffic jurisdiction: The  district courts have complete jurisdiction to dispose of traffic matters to their conclusion or final decision.
  • Civil proceedings: The district courts have jurisdiction over civil matters not to exceed $25,000.00. Civil proceedings is excess of $25,000.00 are filed and heard in the circuit courts.

Misdemeanors, felonies and traffic matters are initiated in the district court. Criminal cases are initiated in the court system with an arrest warrant or appearance ticket. For all felonies and most misdemeanors, an arraignment is held in the district court to advise an individual of the charges and to set bond and bond conditions.

Some of the more common criminal matters that are handled in the 41A District Courts include:

What can be expected if I am charged with a crime in the 41A District Courts?

Those with business in the 41A District Courts can expect to be treated fairly by elected judges are compassionate and that will bend over backwards to give an individual a break. The 41A District Courts in both Sterling Heights and Shelby Township utilize all of the statutory first offender programs to facilitate dismissals, including all of the following programs:

Felony cases: If you get charged with a felony, it starts out in the district court. If you get your felony reduced to a misdemeanor, you AVOID A FELONY RECORD and it remains in the district court. Talk to a local experienced criminal defense lawyer to find out how this is even possible.

Drunk driving: If you  are charged with driving under the influence (OWI, OWI with high BAC, etc.) in the 41A District Courts, you are not looking at jail or losing your license for a first offense. Getting a local attorney to fight for the best outcome is your best bet if you are facing a charge for driving under the influence of drugs or alcohol. There are many discretionary components of a drunk driving sentence  including: community service, immobilization of vehicle, random testing for alcohol and drugs, reporting or non-reporting probation. Some of these conditions can be avoided by strategic legal planning beforehand.

Traffic tickets: The court clerks are not authorized to give legal advice. They will not tell you that you can fight a traffic ticket arising in Sterling Heights, Shelby Township, Macomb Township or Utica and get it amended to an offense that carries NO POINTS and will NOT BE ABSTRACTED on your driving record. As we say, it is a wise investment to fight every traffic ticket.

Expungements of old crimes and drunk driving: The 41A District Courts have embraced Michigan’s Clean Slate law and are eager to grant expungements to those that are eligible. In addition, for the first time ever, effective February 19, 2022, an individual may file for expungement of a conviction for OWI, Impaired Driving or Super Drunk Driving. When you get a case expunged, you can say: I have never been convicted of a crime!

Probation Departments of the 41A Districts in Sterling Heights & Shelby 

The district courts in Michigan (including the 41-A Districts) have jurisdiction to handle all aspects of a misdemeanor offense (arraignment, trial, sentence). A misdemeanor is defined as an offense which can carry up to 1 year in jail. If the offense carries a penalty greater than 1 year, it is classified as a felony. Probation may be imposed for a maximum period of 2 years for a misdemeanor. When probation is required, it may be ordered to be REPORTING or NON-REPORTING. Non-reporting is always preferred. However, an individual is placed on reporting probation will be required to check in/report with a probation officer at predetermined intervals (monthly, bi-weekly). A motion can be filed to modify probation as explained below.

Probation violations and motions to modify probation

As the Michigan statute says ( MCL 771.4): All probation orders are revocable but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, or upon request of the probationer. Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.

Probation violations can result in jail time and the assistance of a criminal defense lawyer is essential. Upon being found guilty of violating probation, the Judge can sentence a person to the maximum remaining jail time which has not been served. Failure to comply with any of the conditions of probation will lead to a probation violation hearing and possible termination of probation and jail. Here are a few scenarios that can result in a probation violation:

  • Getting charged with another crime
  • Failing to report as directed
  • Leaving the State of Michigan without permission
  • Missing or failing a drug or alcohol test
  • Failure to pay fines/costs
  • Failure to attend counseling

If you have been compliant with probation (no violations, completed all programs, paid all fines), you may be eligible to file a motion to terminate or modify probation. In filing a motion to terminate or modify probation, you will want to give your attorney proof that you completed any programs, community service and paid all fines and costs. If you intend to file a motion to modify or terminate probation, our firm recommends that you wait until you have served 50% of your probation term. To get the case before the Judge at the half way point, we would recommend that you get started a few weeks beforehand with your lawyer. Continue reading ›

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Leaving the scene of an accident is a crime in Michigan

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

A traffic crash is a traumatic event. We know from our experience as Macomb County criminal defense lawyers that an individual may leave the scene of an accident for various reasons including when someone is driving under the influence (DUI), driving on a suspended license or because stopping has risks and is not perceived as safe.

Hit and Run is a Criminal Offense

In Michigan, traffic offenses can be charged as civil infractions or as crimes. The offense of leaving the scene of an accident (aka: hit and run, failing to give identification at the scene of a crash) is charged as a crime in Michigan. Along with drunk driving, leaving the scene of an accident is also one of the most prevalent misdemeanor cases that is charged in the Macomb County District Courts. Leaving the scene of an accident is a serious crime that can carry jail, up to 2 years of probation, a fine, court costs and 6 points. Leaving the scene of an accident causing an injury is a more serious crime than one causing property damage. If you get convicted of leaving the scene of an accident a criminal record will be created, 6 points will go on your driving record, you can be placed on probation and get up to 1 year in jail.

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

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

Michigan Driver’s Duties Following an Accident

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

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

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

Are you facing any of these scenarios?

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

  • You have received a ticket for leaving the scene of an accident.
  • You have left the scene of an accident and you face criminal charges because you and/or your vehicle was identified at the crime scene.
  • You have left your vehicle after an accident and do not know what to do.

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

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

Leaving the scene to avoid getting hit with drunk driving

It happens more often than you think. After consuming alcohol,  a person chooses to operate a vehicle and has an unfortunate accident while behind the wheel. The accident may involve a parked car, another occupied vehicle or be a single vehicle accident. The person knows that he or she is intoxicated and doesn’t want to get hit with a DUI. The person makes a decision to leave the scene of the accident believing that it is far better than sticking around and getting charged with drunk driving. Leaving the scene sometimes works out for the offender and sometimes it doesn’t. The driver that leaves the scene, by abandoning his or her car or driving off, will wind up afraid and anxious trying to figure out what will happen next.

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

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

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

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

You have a right to a lawyer and a right to remain silent!

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

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

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

Penalties for leaving the scene of an accident 

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

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

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

Leaving the scene of an injury accident

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

Restitution: Compensation to the victim(s)

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

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

Driving off after accident, leaving disabled vehicle at the scene

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

 

Continue reading ›

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Police Sting Operation is Behind Most Cases of Offer to Engage – Solicitation of Prostitute in Detroit

Pursuant to Michigan law, it is illegal to offer another person money for a sexual act. In the City of Detroit, the offense of offer to engage (OTE) another person for an act of prostitution carries a mandatory penalty of 45 days in jail pursuant to City of Detroit Ordinances.  In the City of Detroit, police, not acutal prostitutes, are out on the streets and create an environment where unsuspecting men are caught up in a situation that will support a criminal charge of OTE. This is accomplished by the use of police decoys that can legally hang out in plain view where motorists are able to slow down and chat with the undercover officer.

The Detroit Police Department has an ongoing sting operation whereby undercover female police officers impersonate street walkers on main streets or where there is a likelihood that motor vehicles will drive by and stop to chat about sex. The female police officers, or decoys, are wired for audio which allows police to listen to the conversation between the decoy and the participant . The unsuspecting participant is typically operating a motor vehicle in the area and feels that it is safe to stop and talk to the female decoy.  The police are situated out of view and close by and stand ready to take action as soon as they hear the participant offer of money for sex. Here are a couple examples of conversations that take place which result in police action and subsequent criminal charges:

  • The person offers $20.00 for a sex act such as a blowjob.
  • The person asks the female undercover officer questions that are suggestive of money for sex or asks “how much for a blowjob?”

There are two (2) major aspects of the case against a person charged with “offer to engage” or “solicitation of a prostitute” which are as follows:

  1. The motor vehicle of the person charged will be seized and it will take 1 -2 days to get it released at a cost of approximately $1,000.00 plus towing and storage.
  2.  The person will be charged with a crime known as “offer to engage” or “solicitation of a prostitute” which will be scheduled for hearings at the 36th District Court in Detroit.

Do not hesitite to hire an experienced criminal defense lawyer if you find yourself facing this scenario. 

The Detroit Ordinance: Offer to Engage or Solicit for Any Act of Prostitution

The use of police resources and decoys to further the prostitution sting operation in the City of Detroit is fraught with criticism; especially by criminal defense attorneys. Despite criticism, the clandestine operation has been in existence for several years. In addition, the City of Detroit nets substantial income as a result of the associated vehicles forfeited and subsequent settlements with the parties charged with OTE.

The Offer to Engage Detroit Ordinance, Section 38-9-5, states as follows:

  1. It shall be unlawful for any person to engage, or offer to engage, the services of another person for any act of prostitution.
  2. It shall be unlawful for any person to aid, assist or abet another to commit any act prohibited by subsection (a) of this section including, but not limited to, aiding, assisting or abetting by receiving or admitting or offering to receive or admit any person into any public place, or any other place, for any purpose prohibited by subsection (a) of this section, or to knowingly permit any person to remain in any such place for any such purpose.
  3. Upon conviction for violation of this section, the court shall:Sentence the defendant to a term of imprisonment for a minimum term of forty-five (45) days and a maximum term of ninety (90) days; and impose a fine of five hundred dollars ($500.00).

Detroit Prostitution Sting Operation Lures the Curious, Unsuspecting Suburban Male

Our typical OTE offender is usually from the suburbs, has never been in trouble or does not have any serious criminal record, and has never been convicted of OTE or solicitation of a prostitute. Unfortunately, the police use a fairly attractive decoy that is able to legally control the environment where the sting operation will take place. Here are a few realities that describe how the police conduct prostitution sting operations:

  • The police decoy is made to be more attractive.
  • The police decoy can be more aggressive.
  • The police decoy can say and do just about anything without fear of being arrested.
  • The police decoy is  positioned where vehicles are likely to stop since the police decoy has no risk of being arrested.

On October 6, 2015, The Detroit News, published an article, Sex, drug sting nab more from suburbs than city.  The following excerpt summarizes the main theme of the article claiming that suburban offenders are more likely to be involved in the Detroit offer to engage sting operation:

“A Detroit police cruiser swooped in and officers took the man, a Southfield resident, into custody. The pretty undercover cop resumed her pavement prancing. More drivers were nabbed after offering the going rate of $15 to $30.

Of the six men caught during the recent two-hour sting operation on Detroit’s east side, five live in the suburbs.

Detroit’s underground economy mirrors the legitimate one: Both rely heavily on suburban investment. Suburbanites flock to Detroit to spend money on sporting events, dining, casinos — and attractions not touted by city boosters, like illicit sex and drugs. “

There are many forms of communications that constitute solicitating a prostitute. There is no requirement that the parties engage in a sexual act to be charged with “offer to engage” or solicitation of a prostitute”. Here are some examples of conduct that can get you in a lot of trouble:

  1. Most Common: Driving your car and pulling over to talk to a hooker or undercover cop and offering money for sex or asking a prostitute for sex in exchange for drugs or something of value.
  2. Using your computer or cell phone to send a message requesting sex for cash.
  3. Walking up to a hooker or undercover cop and asking for a sex act and discussing instructions regarding payment and where to meet.
  4. Talking to a pimp in person or on the internet for the purpose of arranging a prostitute.

All of these scenarios have the essential elements of the crime known as “offer to engage” or “solicitation of a prostitute”.

Legal Defense Strategies to Solicitation of a Prostitute

Getting an experienced Detroit criminal defense lawyer is your best option if you are faced with the criminal charge of solicitation of a prostitute. There are several possible defenses that can be argued to get your case dismissed or the charge amended to a non-sex related crime. Here are some examples of possible defenses:

  • Entrapment,
  • False accusations,
  • False identification,
  • Lack of intent, and
  • Insufficient evidence of a request or solicitation.

Entrapment is the first defense that comes to mind in cases involving solicitation of a prostitute instigated by undercover officers.  The John DeLorean case comes to mind when we talk about entrapment or situations where the government creates the crime.  John DeLorean fought and won drug charges base upon the defense of entrapment which involved the DEA trying to engage DeLorean in a cocaine smuggling operation at a time when DeLorean needed money to save his automotive manufacturing business.

In Michigan, the defense of entrapment requires a showing of either of the following:

  • The police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances, or,
  • The police engaged in conduct so reprehensible that it cannot be tolerated.

Computer Sting Operations

Getting nailed for a sex crime such as offer to engage can happen in a real life setting or while you are surfing and chatting on your computer or cell phone. In Macomb County, there are special units dedicated to the arrest and prosecution of individuals that use a computer to commit a sex crime including: child pornography, solicitation of a minor for immoral purposes, and offer to engage another person for an act of prostitution. Most of these crimes are classified as felonies that require experienced felony representation. The Internet Crimes Unit works closely with Macomb Area Computer Enforcement (MACE), a unit of the Macomb County Sheriff’s Department, along with other law enforcement agencies that have expertise in investigating and prosecuting high-tech computer related crimes. Contact a Macomb County criminal defense lawyer if you find yourself looking at any of the scenarios mentioned in this article.

The Court Process, Avoid Jail and Avoid a Conviction for a Sexual Crime

As I stated, the offense of OTE carries a mandatory jail sentence in the City of Detroit. By getting the charge amended to an unrelated crime, such as “disturbing the peace”, JAIL IS NOT MANDATORY and the final offense is no longer designated as an embarrassing sex crime. Anyone in this situation should hire an attorney with experience handling these matters in the 36th District Court for the City of Detroit. Our firm recommends that a person facing an OTE do the following:

  • Contact an attorney for legal services.
  • Contact the Wayne County Prosecutor, Vehicle Seizure Unit, for instructions to get their motor vehicle returned (which typically costs $1,000.00 in forfeiture fees plus vehicle towing and impoundment).  It has been our experience that settling with the prosecutor for the return of the motor vehicle is far less expensive than fighting the forfeiture proceeding in Court. It is also is very important to know that is not an admission of any criminal act or any wrongdoing by paying or entering into a settlement for the return of the vehicle.
  • Do not discuss your case with anyone including the clerks at the court that are forbidden by law to give any legal advice!

The case will be scheduled for arraignment and other proceedings at the 36th District Court located at 421 Madison, Detroit, Michigan 48226. There are 29 elected full time Judges assigned to the 36th District Court. A Judge is assigned to the case for purpose all court proceedings. If the matter is not resolved, it will be scheduled for a trial. Our firm has resolved more than 95% of all OTE cases that we have handled by plea bargaining to a lesser offense. By resolving the mater, our firm has been able to:

  • Avoid a conviction and the humiliation associated with a sexual related crime by getting the charge amended to under a different statute or ordinance.
  • Avoid jail.
  • Avoid a public trial.

In most cases, short periods of probation from 3 -6 months can be obtained. In addition to probation, the Judge will require HIV testing and attendance of a class regarding impulsive conduct/decisions. The Judge has the final word regarding the terms of sentence for a criminal case. However, based upon our experience, you will be home-free with almost every 36th District Court on the bench. 

The following Court dates will be scheduled with respect to a misdemeanor case that does not go to trial:

  1. Arraignment: At an arraignment, the court will advise the accused party of the charges, set the next court date, establish any bond conditions (such as alcohol/drug testing), and set bond.
  2. Pretrial Conference: The pretrial conference is an extremely important court date where the attorney will have a conference with the prosecutor to get the criminal charge(s) reduced, dismissed, or amended.  as I have mentioned in this article. We consider it a major victory to get a sexually related crime amended to a crime that is completely unrelated to sexuality or perversion. This is often the way we resolve offenses that involve offering to engage another person for an active prostitution. If a case is resolved on the pretrial conference date, the parties will appear before the judge to explain the resolution or plea bargain. The court may proceed to pass sentence at this time or set sentencing for a subsequent court date. Most hearings for misdemeanors are handled remotely via Zoom. Here is a handy link to join Zoom hearings for all of the 36th District Court courtrooms.
  3. Pre-sentence Interview: The Judge may require a pre-sentence interview whereby the accused party will be required to meet with an assigned probation officer. The probation officer will gather information and prepare a detailed report which will be made available to all of the parties on or before the date scheduled for sentencing.
  4. Sentence: The accused party is required to appear before the Judge (either in-person or remotely via ZOOM hearing) for final sentencing. The attorney for the accused will fight for leniency and to get his or her client out of the system with the least consequences.

We consider every case to be a personal matter and believe in protecting the constitutional rights and privacy of our clients while getting our clients out of the court system as discreetly and efficiently as possible.  Continue reading ›

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

We know that you didn’t intentionally set out to get charged with drunk driving.  You’re in the right place if you are looking for straight answers  about a drunk driving matter (OWI, Super Drunk Driving) that occurs anywhere in Macomb County. This guide has been prepared by our local Macomb County Drunk Driving Defense Lawyers to provide you with valuable information and answers to many of your most pressing questions if you are charged with drunk driving as a first time or repeat offender.

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

The district courts located in Macomb County are as follows:

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Macomb County District Court Map

Frequently Asked Drunk Driving Related Questions

  • Am I going to jail for a first time drunk driving? NO. You are not looking at jail in any Macomb County County District Court if you are found guilty of a first time offense involving operating while under the influence (including OWI, High BAC or Impaired Driving). If you are convicted of a second time drunk driving, there is a good chance that a locally experience drunk driving attorney will have a plan to avoid jail.
  • Will I lose my driver’s license if I am convicted of driving under the influence? If you are charged with a first time OWI, there is almost 100% likelihood that it will be reduced to “impaired driving” and you will not lose your license. However, license restrictions will be imposed for a period of 90 days upon pleading guilty or being found guilty of impaired driving. If you are convicted of either OWI w/BAC .08 or OWI with a High BAC .17, you are looking at a brief period of suspension followed by restrictions. Restrictions include driving for employment, school, counseling, medical and court related programs.
  • Will I lose my CDL if I am convicted of driving under the influence? Pursuant to Michigan laws, a person convicted of any drinking and driving offense will lose CDL privileges for a period of one (1) year.
  • When should I hire a lawyer? It might take a month or longer before you get your first court date. However, you don’t need to wait until you get a court date before hiring a lawyer. You should consider hiring a lawyer as soon as possible if you are charged with any crime or drunk driving. There are proactive measures and strategies that can be taken right away if you are facing a criminal offense or drunk driving.
  • Can a drunk driving ever get dismissed? The answer to this question is YES. It is difficult to get a drunk driving dismissed but entirely possible based upon numerous legal and non-legal variables and circumstances. Even when a case cannot be dismissed, there is a good chance that it will be reduced to a lower charge. Getting a local Macomb County drunk driving defense attorney is your best option if you are looking to get the best possible representation.
  • Can drunk driving be charged as a felony? YES. You can be charged with felony drunk driving,  which can carry up to 5 years in prison tf you obtain a third DUI conviction in your lifetime. The old rule that the all three offenses had to occur within a ten (10) year period has been abolished under Heidi’s Law. Hire a local Macomb County felony drunk driving attorney to explain how you can avoid the worse case scenario if you are charged with felony drunk driving in Macomb County.
  • Can I get an old drunk driving expunged? YES. Effective February 19, 2022, as part of Michigan’s Clean Slate laws, an individual may get one and only one drunk driving expunged if he or she meets the eligibility requirements and has resolved any underlying alcohol or substance abuse problem. The DUI expungement law will allow for expungement of any 1 of the following offenses:
    • Operating While Intoxicated
    • Operating Under the Influence of Drugs
    • Operating While Impaired
    • Operating with a High BAC .17 or greater
    • Zero tolerance/minor with any BAC
  • What is a BAIID device? A Breath Alcohol Ignition Interlock Device, or BAIID, is a device installed in a vehicle that captures the image of the drive and measures the driver’s blood alcohol content (BAC). The BAIID notifies the driver to provide breath samples when starting the car and at intervals while driving. The information is recorded and downloaded by the BAIID installer. BAIID violations can result in reinstatement of license suspension or revocation. A BAIID device allows an individual, whose license is otherwise legally suspended or revoked, to drive a vehicle. The BAIID is required for individuals that have been convicted of OWI with a High BAC .17.
  • Will I lose my CPL if I am convicted of an OWI or Impaired Driving? Unfortunately, you will lose your Concealed Pistol License (CPL) rights if you are convicted OWI or Impaired Driving. The right to have a CPL is gone for 3 years after a first time offense for operating under the influence. An individual convicted for a second offense will lose his or her CPL rights for 8 years.
  • Can I travel across the border into Canada if I am convicted of OWI or Impaired Driving?  Based upon Canadian immigration laws, a person that has been convicted of OWI or Impaired Driving will be considered criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.
  • Should I start going to counseling if I am charged with drunk driving?  Your attorney will give you the best course of action to follow if you are charged with driving under the influence. In some cases, but not all, we may recommend proactive measures such as obtaining a substance abuse evaluation, attending AA meetings, attending on-line courses, and/or obtaining character letters. This is true if you are facing an OWI 2nd Offense, OWI 3rd Offense, or OWI with a High BAC .17 or more.

Michigan State Police Maintain Annual Drunk Driving Statistics

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

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

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

Macomb County: Number of individuals tested for alcohol/drugs

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

Oakland County: Number of individuals tested for alcohol/drugs

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

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

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

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

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

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

dui 257g

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

The following is a directive to law enforcement officers after placing someone under arrest for a DUI:

MCL 257.625g: On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

Once officially arrested for a drunk driving offense, the police will destroy the driver’s license of the accused party and issue a Michigan Temporary Driving Permit (see above image).  The temporary permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, search warrant for blood if there was a refusal, ticket or other notification, bond receipt and towing receipt. This Michigan Temporary Driving Permit will enable the person to continue to operate a vehicle without any restrictions. Upon being found guilty or convicted of operating while intoxicated or impaired, the Secretary of State will take appropriate action against the party’s license (suspend, revoke, restrict). The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

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

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

When am I allowed to drive if I am granted a restricted license?

Depending upon the final outcome of a drinking and driving case, a person is normally allowed to drive on a restricted license following a conviction for a driving and driving offense. Restrictions include driving for the following purposes:

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

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

The Science of Blood Alcohol Content (BAC): Alcohol Absorption and Elimination

Shot, Beer, and Wine

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

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

DUI BAC CHART MALE & FEMALE

The science of alcohol elimination from the body also plays a role in a person’s BAC. Just as alcohol is absorbed in a person’s blood over time, it is also eliminated. Although each person has a unique metabolism rate, it is estimated that alcohol is eliminated from the body at the rate of .015% per hour after hitting a peak BAC.  At this rate, it takes an estimated 70 to 90 minutes, or longer, for the human body to eliminate a single drink. A single drink = 1.5 oz. shot of 80 proof hard liquor, a 5 oz. glass of wine (12% alcohol) or a 12 ounce beer (5% alcohol).  See hours to zero chart below:

HOURS TO ZERO

Once behind the wheel of a car after consuming alcoholic beverages, ignorance of the law is not a excuse and the law enforcement officials do not discriminate even for those individuals that have never been in trouble.

The Court Process in Macomb County

Get an experienced local drunk driving lawyer if you are faced with a drunk driving case in Macomb County. Do not think that the police or clerks of the court will give you legal advice that you can trust. Drunk driving is a crime in Michigan that is governed by the rules of criminal procedure. A person charged with a crime is entitled to protection under the United States Constitution pursuant to the Bill of Rights. Whether it is a misdemeanor or felony drunk driving, the accused is entitled to discovery of all reports, test results, witness statements, accident reports and video/photographic evidence. In addition, the accused is entitled to a trial by jury. The following is a basic framework of the court process in Macomb County for OWI cases:

  1. Arraignment:The arraignment is the first time that you will appear before a Judge or Magistrate regarding your case. The following will occur at your arraignment:
  • The court will advise you of your charges.
  • You will be required to enter a plea (we ALWAYS plead not guilty or stand mute).
  • The court will establish bond conditions such as drug and alcohol testing.
  • Your next court date will be scheduled.
  1. Alcohol and Drug Testing:If alcohol and/or drug testing is imposed, you will be instructed by the court when and where to test. By following these instructions, you will avoid a bond violation hearing for non-compliance. Here is a list of the various methods to test for alcohol and drugs:
    • EtG (urine) test: EtG is used to detect recent alcohol consumption in a urine sample. The test can confirm that there has been alcohol in the body up to five days after consumption.
    • Random Alcohol Testing: A device called a breathalyzer is used to measure blood alcohol content (BAC) from a sample of air exhaled from a person’s lungs. You may be asked to provide random breath test samples at a designated location on a breathalyzer instrument.
    • SCRAM Monitor:  SCRAM Continuous Alcohol Monitoring ankle bracelet provides continuous transdermal alcohol testing for by automatically sampling the wearer’s perspiration every 30 minutes. Some clients prefer SCRAM Monitoring over other methods of testing while others claim that it is embarrassing and uncomfortable.
    • SoberLInk: This is the handheld breathalyzer that fits in a pocket or purse and requires breath samples at various intervals during the day. It uses facial recognition and the information is downloaded to the provider.
  1. Pretrial conference: The pretrial conference is scheduled after the arraignment. This is the proceedingwhere our attorneys will speak with the prosecutor to discuss various issues in a criminal case and possibly work out a plea bargain.  Driver license sanctions are imposed by the Secretary of State after you enter a plea before the Judge. You will receive your license sanctions approximately 10-14 days by US Mail after a plea based conviction is entered on your driving record.
  1. Restricted license:You will receive driver’s license sanctions/restricted license from the Secretary of State within about 10 to 14 days after a guilty plea or conviction is entered with the court. Driving sanctions are attached to every drinking and driving offense. The sanctions that apply will depend on the final outcome of the case:
    • Super Drunk Driving (OWI high BAC .17): NO driving for the first 45 days followed by restrictions for 320 days with a BAIID device.
    • OWI ( With a BAC .08 to .16): NO driving for the first 30 days followed by restrictions for 150 days. BAIID NOT REQUIRED.
    • Impaired Driving: Restrictions for 90 days. BAIID NOT REQUIRED and there is no mandatory period of suspension.
  1. License Restrictions Defined:As we discussed, Allowable restrictions include the following:
    • To and from residence and all employment, and during all employment.
    • To and from alcohol or drug education or treatment programs.
    • To and from regularly scheduled treatment for serious medical conditions.
    • To and from probation, community service, education (college, trade school, etc).
    • BAIID is required for Super Drunk cases for 320 days. Court may order BAIID even if not required by SOS.
  1. Substance Abuse Evaluation: You’ll be required to appear for a substance abuse evaluation with one of the court’s probation officers after you enter a guilty plea or after a conviction for a drinking and driving offense.  This appointment is used to determine if you have a substance abuse problem. A report will be prepared at the conclusion of this process which will contain recommendations to the Judge regarding treatment options, if necessary. You should dress neatly, be cooperative, and stick to answering the questions that are asked regardingyour circumstances in life and use of alcohol and control substances.  If you are already involved in a counseling program, the court may allow you to continue with your own program, rather than impose some other court directed program.
  1. Sentencing:Sentencing occurs After a substance-abuse assessment is completed. We will have an opportunity to review the assessment before the actual sentencing proceeding before the judge. For a first offense”impaired driving”, you can expect the following sentence terms and conditions:
    • OWI w/High BAC .17 or more: 6 points, up to 180 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • OWI .08 or more: 6 points, up to 93 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • Impaired Driving: 4 points, up to 93 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • Probation may be non-reporting or reporting (reporting probation is not a big deal and only means that you have to report to the probation officer once per month).
    • You may file for early termination of probation after you have served 50% of the total term of probation without any major violations.
    • If you intend to travel out of state while you are in the court system (on bond or during a period of probation) you will need to file a request to travel with the court .
    • The Court may require you to continue testing while you are traveling out of state.
  1. Expungement of Drinking and Driving Offense: You are eligible for expungement of one drinking and driving offense in your lifetime. You can file for an expungement when you are off of probation for a period of 5 years. An expungement is a way to remove past offenses from your public record. Please retain any proof or certificates of any programs that you have completed.

What about driving under the influence of marijuana?  

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

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

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

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

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

What are the likely outcomes of a drunk driving case in Macomb County?

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

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

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

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

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

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

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

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

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

Can a drunk driving case ever be completely dismissed?

If you are charged with drunk driving, we already know that you want the case dismissed, you do not want to be on probation and you do not want to be tested for alcohol. However, the reality is that 90% or more of all drunk driving cases wind up resulting in a conviction to a drinking and driving related crime.

In some cases, certain factors and legal avenues can be pursued which may result in a dismissal, major reduction or not guilty verdict of a drunk driving case.

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

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

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

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

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

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Three Lifetime Drunk Driving Charged as a Felony in Michigan!

Since the passage of Heidi’s Law in Michigan in 2007, a person is subject to felony prosecution for three (3) or more lifetime convictions for any combination of:

  • OWI/operating while intoxicated-alcohol with a BAC of .08 or greater,
  • OUID/operating under the influence of drugs/prescription medications,
  • OWPD/operating with the presence of Schedule 1 controlled substance,
  • Super drunk driving/operating with a high BAC of .17 or greater,
  • OWVI/operating while impaired driving,
  • Zero Tolerance/under 21 with any BAC (0nly 1 such conviction may be counted towards a felony).

Driving under the influence convictions which occur in states outside of Michigan are also counted.   This law has been on the books for several years and all states have adopted this law. However, prior to the passage of this Heidi’s Law, a person could only be charged with felony drunk driving if the prior convictions occurred within 10 years of the new arrest.  This blog will explore legal defense strategies, possible penalties and other ramifications associated with a felony DUI offense. For additional information: What you need to know now if you are charged with drunk driving anywhere in Macomb County.

It is a felony if you get convicted for a third drinking and driving offense in Michigan.  A person convicted of a felony will lose coveted rights such as the right to possess a firearm. There is a social stigma for individuals convicted of a felony and other consequences associated with a felony record.  Hiring a local lawyer with years of experience  handling felony matters if you find yourself facing a DRUNK DRIVING THIRD or any other felony charge. Felony lawyers will look at every possible angle to get the charge dismissed or reduced to lower offense.  Felony lawyers also know what to expect from the local judges and prosecutors in the jurisdiction where they practice.  For example, we know from experience that there is the possibility of reducing a felony charge in Macomb County (including felony drunk driving) to a misdemeanor under certain circumstances and with the Macomb County Prosecutor’s approval.

Penalties for Felony Drunk Driving Conviction

The list of possible penalties for a third driving and driving conviction in Michigan are as follows:

  • Fines: $500.00 to $5,000.00 fine, plus costs.
  • Jail/Community Service: Imprisonment for 1 to 5 years, or, probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively.
  • License Sanctions: License revoked minimum of 1 year for any felony driving offense. A second revocation is for 5 years. After minimum period of revocation, a person must appear before the Driver License Appeal Division satisfy several requirements before a license will be granted.
  • Other: Destruction of License, Plate confiscation, Vehicle immobilization from 1 to 3 years, Possible vehicle forfeiture .
  • Points: 6

Proving Drunk Driving: Actual intoxication is irrelevant when test results are .08% or greater

The elements of a drunk driving which the prosecutor must prove are:

Intoxication or Impairment by alcohol, drugs or marijuana: In Michigan “Operating While Intoxicated” (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs (OUID) to a degree that renders one unable to safely drive a vehicle. In Michigan, OWI convictions can be obtained regardless of actual intoxication if a person has a BAC of .08% or greater or tests positive for the presence of certain Schedule 1 drugs. Pursuant to MCL 257.625, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

Proof of operation of vehicle:  The police do not have to witness the offender actually driving or operating the vehicle. In the cases researched, you can be charged and convicted with OWI if the police had probable cause to believe the accused was operating the vehicle at some point in time. In other words, evidence of recent operation will suffice in cases where there is an accident or when a vehicle in a ditch or off the road).

Legal traffic stop:  A traffic stop may be based upon any violation of any Michigan traffic laws. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment and coming in close contact with objects or other vehicles. The police may also approach a person that is found fixing a flat tire on the shoulder of a road although nothing illegal is occurring! Cellular phone calls to the police may also be used to give law enforcement officers with notice of a drunk driver’s whereabouts. The caller may be eventually be called as a witness.

Planning a defense strategy for felony drinking and driving

Our goals  in every criminal case, including drunk driving, are always the same: avoiding of a conviction and avoiding jail!  While avoiding a conviction or jail 100% of the time is not realistic even for experienced criminal defense lawyers, steps can be taken to get a case under control, reduce charges and obtain the lowest possible sentence.

Police Report: The police report can be obtained soon after we are retained for a criminal matter. By law, the prosecutor is required to provide full disclosure (known as discovery) of the report, videos and test results (see blog regarding alcohol/drug testing). Refuting the accuracy of tests, intoxication and grounds for the traffic stop are ways in which a drunk driving charge may be challenged. An aggressive drunk driving defense may also include:

  • Interviewing any possible witnesses (passengers, last persons who could testify as to client’s sobriety)
  • Obtaining an expert witness to challenge blood or alcohol test results (especially in close cases or cases involving prescription meds or THC levels)
  • Recreating the scene of the traffic stop

Client Background: Obtaining a complete personal history of our client is essential in the preparation of a sound legal defense. In our experience, the positive background of a person can make a vast impression on the prosecutor, the probation department and the assigned judge during various phases of a criminal case.

  • Education, degrees, special skills
  • Employment, years at employment, position, awards
  • Family situation, child support obligations
  • Military duty, tours of service, decorations, honorable discharge
  • Charitable service, community involvement
  • Other awards, achievements, recognition
  • Past and present physical health, mental health, psychological attention, medications
  • Past and present substance abuse/alcohol treatment, in-patient care, attendance of AA, relapse prevention programs

Criminal History: In addition to the personal history, the lifetime criminal conviction history also plays a vital role in the criminal process of a drunk driving offense.  We can usually minimize the value of extremely old criminal offenses.

  • Misdemeanors (including traffic related misdemeanors)
  • Felonies
  • Juvenile record
  • Drinking and drug convictions (disorderly conduct, domestic violence, MIP, possession of marijuana, etc)

Habitual Felony Offenders: For felony convictions, Michigan judges are required to follow the Michigan Sentencing Guidelines. The guidelines factor in prior convictions and felonies for purpose of scoring a sentence range. Prior felonies will be used to label an offender as a habitual offender. A person with 1 prior felony is considered a “habitual offender 1” or Hab-1st. Habitual offender status can go as high as Hab-4.  The maximum penalty for a person with Hab-4th  status (meaning the person has 3 prior felonies not counting the charged felony) is up to life in prison.

Other Relevant Factors:  The following factors may influence the outcome or sentence of a felony drunk driving:

  • Is the person charged with  a *true 3rd DUI offense (meaning the offender has only 2 prior DUI lifetime convictions)?
  • Are any of the prior drinking & driving offenses more than 10 years old?
  • Does the offender have a felony record?
  • Does the pending offense involve an injury accident?
  • Is the blood alcohol content (BAC) in a close range to .08% or is it extremely high (over .17%)?
  • Has the offender engaged a substance abuse counselor and/or AA?
  • Is the offender on probation for any other criminal matter?

*In Macomb County, our firm has advocated plea bargains to a misdemeanor if the offender is charged as a true third drunk driving offender. We have achieved this result in numerous cases; including offenders with more than two (2) prior lifetime DUI offenses. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.

Possible outcomes of a drunk driving felony

Everyone likes to believe that they will win their drunk driving case at trial. This is not realistic since the vast majority of drunk driving offenses (as well as all other criminal offenses) in Michigan are resolved based upon a plea bargain.  In fact, recent statistics indicate that over 90% of all criminal cases are resolved by a plea bargain and not by trial.

Rarely is a client willing to roll the dice at trial when we can secure a deal to have a drunk driving felony reduced to a misdemeanor with a dismissal of the felony charge. However, our attorneys will examine a case from every angle to determine the best course of action which may include:

  • Scheduling the case for a jury trial
  • Fling and arguing motions to dismiss because of an illegal traffic stop
  • Filing and arguing improper testing procedures or equipment failures
  • Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
  • Negotiating the minimum sentence (30 days with community service) to avoid prison
  • Sobriety Court

Michigan State Police Annual Drunk Driving Audit

The Michigan State Police maintains an annual audit of drunk driving cases based upon data from the courts and police in Michigan which provides detailed information concerning traffic fatalities and injuries, as well as drunk driving arrest activities in the state. The most recent Michigan Drunk Driving Audit covers 2022 which was completed in July, 2023. Therefore, don’t expect the 2023 audit until around July, 2024. Here are some of the details obtained from the 2022 Annual Drunk Driving Audit:

Macomb County, Number of breath and/or blood tests for alcohol: 1,890

Oakland County, Number of breath and/or blood tests for alcohol: 3,619

Wayne County, Number of breath and/or blood tests for alcohol: 3,735

St. Clair County, Number of breath and/or blood tests for alcohol: 458

Washtenaw County, Number of breath and/or blood tests for alcohol: 840

There are thousands of drunk driving arrests in the Metro Detroit and surrounding regions as illustrated by the above information. Some of these individuals may be facing any one of the following drinking and driving offenses:

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Most Courts Likely to Order Testing for Alcohol or Drug Crimes

A person that is charged with a crime that involves drugs or alcohol may be ORDERED to comply with alcohol and drug testing as a condition of bond or as a condition of a final sentence. Drug or alcohol testing can be ordered for the entire term of probation. The court can order up to two (2) years of probation for a misdemeanor and up to five (5) years of probation for a felony.  Alcohol testing in almost always required for drunk driving cases, especially if a person is charged with OWI with a high Blood Alcohol Content (BAC) of .17 or greater. Here is a list of the types of drug and alcohol tests most commonly utilized in the Macomb County District Courts and the Macomb County Circuit Court:

  • EtG (urine) test: EtG is used to detect recent alcohol consumption in a urine sample. The test can confirm that there has been alcohol in the body up to five days after consumption.
  • Random Alcohol Testing: A device called a breathalyzer is used to measure blood alcohol content (BAC) from a sample of air exhaled from a person’s lungs. You may be asked to provide random breath test samples at a designated location on a breathalyzer instrument.
  • SCRAM Monitor:  SCRAM Continuous Alcohol Monitoring ankle bracelet, or similar systems, provide continuous transdermal alcohol testing for by automatically sampling the wearer’s perspiration every 30 minutes. Some clients prefer SCRAM Monitoring over other methods of testing while others claim that it is embarrassing and uncomfortable. 
  • SoberLInk: SoberLink, and similar devices, are handheld breathalyzers that fit in a pocket or purse. The device will vibrate or beep at various intervals during the day when a breath sample is required. The testing information, along with a video of the person providing the test, is downloaded to the SoberLink provider. If there is a violation, it will be submitted to the court for further action such as a bond violation or probation violation. 

What is an EtG Test?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process

EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:

Step 1:  A chain of custody form is completed
Step 2:  The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3:  A urine specimen syringe device is used to collect a sample of the urine.
Step 4:  The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5:  The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6:  Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

The EtG test for alcohol can detect even very low-levels of alcohol  in the urine several days after consumption. But becaue the EtG test is so sensitive, it can produce a positive test for ethyl glucoronide from the mere exposure to alcohol that is present in household products that are used everyday.

What Causes False Positives?

According to SAMHSA’s research, positive EtG tests can result from the use of hand sanitizers, medications, hygiene products, cosmetics, foods and other products that contain even small levels of alcohol. People can test positive for alcohol consumption after being exposed to laundry detergent, antiperspirant, aftershave and even hair spray.

There are hundreds of household products that contain ethanol, according to the National Library of Health’s Household Products Database, which could possibly cause a false positive with the EtG urine test.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.

File a Motion for Early Termination of Probation or for Modification of Court Ordered Alcohol/Drug Testing

Did you know that you can request to be released from probation after you have served 50% of your probation without any violations. This means that if you are ordered to be placed on probation for a period of one (1) year, you may be eligible for early release from probation after six months. Once you are released from probation, all of the terms of probation are terminated as well. Even when the court does not terminate your probation, you may file a motion, or a request, to have testing eliminated or modified as a term of probation. Contact an attorney to find out if you are eligible to for early termination of probation or modification of testing requirements.
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shoplifter

In a recent Wall Street Journal Article Judge Thomas Boyd, who handles misdemeanor cases in Ingham County, Michigan, said

“he sometimes finds himself arguing with defendants who seem too eager to admit wrongdoing without consulting a lawyer.” 

The crime of shoplifting is covered under the umbrella of the Michigan Retail Fraud statutes. Retail fraud is a serious crime. A person convicted of retail fraud is labeled as a “dishonest” person or a “thief”. We believe that these characterizations are unjust and can unfairly damage a person’s reputation, lead to deportation and can. jeopardize employment and/or education  opportunities . Being charged with a any crime can be a life changing event. Don’t take the path of pleading guilty without the benefit of a lawyer. A skilled local criminal defense lawyer will get your life back on the right track, restore your reputation and keep your record clean in the process.

Cases dismissed even if you did the crime!

Being guilty does not mean that you will be found guilty. The court system can be forgiving, especially if you have are a first offender.  In this publication, we discuss how a retail fraud offense can be dismissed for eligible offenders in every Macomb County District Court:

In addition, we warn you that an opportunity to get a dismissal can be lost by saying the wrong thing on your court date to the prosecutor or to the judge. You also need to understand that the employees of the court are forbidden by law to give you legal advice! Getting a local criminal defense lawyer is always your best course of action to GET YOU OUT OF THE COURT SYSTEM.  If you are charged with retail fraud, there are many ways that an experienced Macomb County criminal defense attorney can negotiate to get you out of the court system by accomplishing these goals:

  • Avoid a conviction.
  • Avoid deportation.
  • Avoid jail.
  • Avoid a criminal record.

Retail Fraud: Major Shopping Corridors

Retail fraud cases are on the rise and are always one of the most frequently charged misdemeanor offenses and felony offenses in the Macomb County District Courts where we practice extensively.  While every court in Macomb and Oakland County sees its fair share of shoplifting cases, the courts which are located in regions with shopping malls (Troy, Roseville, Sterling Heights), major retailers (Target, Kohl’s, Walmart, Home Depot, Meijer) and major shopping corridors have the greatest number of retail fraud cases on their dockets for obvious reasons. While each offender has a different reason for committing the offense of retail fraud, some of the common variables that we are seeing in Macomb County misdemeanor retail fraud cases (amount involved is under $1,000) are as follows:

  • Isolated Incident: Our typical client charged with retail fraud does not have any prior criminal record, with the exception of possible prior minor infractions or misdemeanors.
  • Shoplifters target easily concealable merchandise, such as cosmetics, food items, lingerie, jewelry.
  • Shoplifting often occurs at the self checkout by attempting to defeat the scanner or by scanning an item or barcode that is a lower price.
  • Many individuals accused of retail fraud have made legitimate purchases at the retail establishment and have financial means to pay for the item(s) improperly taken.
  • The value of the property taken is under $1,000.00.

Retail Fraud: Concealment, Scanners, Changing Price Tags

Retail fraud occurs in many different ways. It can be accomplished by taking property and attempting to conceal it, by changing a price tag  or putting item in a container that is offered for sale for a lesser amount. Retail fraud also occurs frequently at the point of checkout at a self-scanner or when someone tries to defeat the bar code scanning equipment by spurious means.

Retail Fraud Over $1,000 = Felony, Under $1,000 = Misdemeanor

Retail fraud crimes can be charged as a felony or misdemeanor and are classified by the value of the property taken or whether the offender has a prior record. A prior record for larceny, false pretenses or a prior retail fraud may result in enhanced penalties.

  • 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.

Impulsive Behavior, First Offender?

Approximately 20,000 larceny related crimes are reported each year in Michigan. Larceny related crimes include retail fraud. Shoplifting is not limited to those that are underprivileged. In general, our clients have never been in trouble, have financial resources and their conduct can be described as an isolated incident. In other cases, we have also represented those that are impoverished or suffer from a compulsive shoplifting disorder. It is our job to work with our clients to understand why our client is charged with a crime so that we can provide effective legal representation and solutions.

  • Impulsive behavior: Impulsive conduct, or acting before you think, is also high on the list of reasons that a person engages in the offense of retail fraud.  Impulsive behavior is not limited to juveniles or youthful offenders. Our Macomb County criminal defense lawyers have represented individuals in every age group and every walk-of life including senior citizens and mini-van-moms who site impulsiveness as a reason for committing an act of retail fraud. We label many retail fraud cases as an “isolated incident” which means that it is not likely to ever occur again. Most impulsive or first time offenders are not likely to become a client again for retail fraud and most courts go give leniency for first time offenders engaged in a one time “isolated incident”.
  • Psychological issues, adjustments to medications: Pre-existing psychological conditions including, PTSD, depression, ADHD, along with adjustments to prescription medications, can sometimes be the cause of erratic or irrational conduct that leads to a person to engage in risky behavior.  The court system is sensitive to those that are dealing with a psychological disorder or maybe recent stressful situation that causes inappropriate conduct. In these cases, we may recommend that our client begin a counseling program, attend a retail fraud prevention class or take some other proactive course of action.  We will obtain as much background information as possible from our clients and make recommendations that can often make a vast difference in the outcome of a case once it is in the court system.

I have been arrested for retail fraud. What do I do next?

Being arrested for any crime can be a devastating experience. If you are caught shoplifting and are looking at being charged with retail fraud, you will either be arrested or given a citation with instructions to contact the court. If you find yourself in this position, hiring a local criminal defense lawyer is your best course of action to navigate your case and get you out of the system smoothly and expeditiously.

Macomb County Misdemeanor Case Procedure

Arraignment: An arraignment is where the court will read the charge(s), advise the accuse of his or her right to an attorney, set bond and schedule the next court date.

  • Discovery: The next stage of the case is called discovery which means both sides have the right to gather all of the evidence.
  • Motions: Motions may need to be filed when the court’s is needed to address pre-trial issues.
  • Pretrial Conference: The pretrial conference is an important stage in a criminal case which typically results in a resolution of a case without heading to trial.
  • Trial: A person accused of a crime is entitled to a trial before a jury.
  • Burden of Proof: The prosecutor must prove its case beyond a reasonable doubt or the jury is required to return a verdict of not guilty.
  • Pre-sentence Report: If a person is found guilty of a misdemeanor, the court may require the individual to interviewed by the probation department.
  • Sentence: The sentence stage of a case is where the court can impose jail, probation, fines, court costs, restitution, counseling, alcohol and/or drug testing.

A lawyer should be obtained as soon as possible once a person is released from police custody. Remember, the police, prosecutor and court personnel do not give legal advice.

Getting a second chance in Macomb County Courts!

The outcome of a retail fraud case in the Macomb County Districts Courts will depend upon various factors including:

  • The prior criminal record of the offender.
  • Cooperation with authorities.
  • The value of the property stolen can make a minor retail fraud offense into a felony.
  • The proactive measures taken by the offender prior to the first court date.

Judge Thomas Boyd: “Defendants too eager to admit wrongdoing without consulting a lawyer.” 

While retail fraud cases do not usually involve jail, they can be devastating on a person’s permanent criminal record. A retail fraud offense can label an individual as a “thief” or “dishonest” person. At some point during the legal proceedings, the offender will be judicially interrogated. Saying the wrong thing to the prosecutor or the judge can result in permanent conviction.  The guidance of a criminal defense lawyer can make a huge difference in whether the offender gets stuck in the system or gets a second chance for a dismissal.  In the following Macomb County District Courts, a plea bargain with a disposition for a dismissal is feasible for first offenders charged with retail fraud 3rd degree in every Macomb County Court!

Deferrals, First Offender Programs:  When a client has never been convicted of a crime, we may be able to advocate for a plea bargain to obtain a first offender program  ask that the case be taken under advisement with a dismissal after a period of probation. Probation is rarely more than 1 year but can be as short as 6 months.

Youthful Offenders: Individuals that qualify as youthful offenders (age 18 but under age 26), may qualify for disposition of a criminal case, including retail fraud, pursuant to the HYTA statute. An individual that is granted HYTA status will  benefit by getting the criminal charge(s) sealed and dismissed at the end of a period of probation.

Felony Retail Fraud: When someone is charged with felony retail fraud in the first degree, our goal may be to avoid jail and a felony conviction.

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License Revocations and Appeals to the OHAO: 

I wanted to use this post as a forum to reflect on my vast experience handling driver license appeals with the Michigan  Department of State, Office of Hearings and Administrative Oversight (OHAO). The OHAO was formerly called the Driver License Appeal Division or DLAD. The OHAO is the administrative body of the Secretary of State that conduct driver license restoration hearings. The hearing officers are licensed attorneys that are employed by the State of Michigan. In comparison to Michigan District Court or Circuit Court Judges, The hearing officers are not elected or appointed for a designated term.

Following the COVID pandemic, OHAO hearings are conducted remotely. Presently, the OHAO utilizes the Microsoft Teams video conferencing application to conduct hearings. Click here for a directory of the OHAO hearing officers and the link to the OHAO MS Teams portal.

  • WINNING OHAO HEARING: If you win your OHAO hearing, you will be allowed to operate a vehicle on a restricted basis with a Breath Alcohol Ignition Interlock Device (BAIID). After you have had the device on your vehicle for a minimum of one (1) year, you can file a request for a second hearing FOR REMOVAL OF THE BAIID AND FOR  FULL RESTORATION of your driver’s license.
  • LOSING OHAO HEARING: If you lose your OHAO hearing, you are not eligible for another OHAO hearing for a period of one (1) year.

HOW WILL YOU ANSWER THESE QUESTIONS??

A hearing is subject to the rules of evidence and is conducted by the petitioner’s driver license restoration attorney and the hearing officer. Hearings last approximately 30 to 45 minutes. Here is a partial list of questions that may be covered at an OHAO hearing:

  • Are you an alcoholic?
  • Have you ever used drugs?
  • Do you have a medical marijuana card?
  • Do you think it would ok to partake in a toast at a wedding with an alcoholic beverage?
  • Do you continue to attend Alcoholics Anonymous or a counseling program?
  • Why didn’t you stop drinking after your first drinking and driving offense?
  • Do you see yourself drinking at any time in the future?
  • Did you drink on a daily basis? Weekly basis? Monthly basis?
  • What kind of alcohol did you consume (beer, hard liquor, wine)?
  • How much would you consume per sitting?
  • Do you keep any alcoholic beverages in your residence?
  • Does anyone in your household consume alcoholic beverages?
  • Do you ever go to bars or places where alcohol is served?
  • Do you know the serenity prayer?
  • Do you know the 12 AA steps?
  • What is your relapse history?
  • What is the longest period of maintaining sobriety?
  • Are you on probation?

Your answers to these questions, along with several more, can make or break you! If you need help with any of the questions, do not hesitate to hire an experience driver license restoration lawyer in Macomb County. An experienced Michigan license restoration lawyer will work with you to win your case. This means that your lawyer make sure that all of your documentation is consistent and effective before it is submitted to the Secretary of State and will prepare you to answer the questions that are likely to be raised at your hearing.

When can a person’s license be revoked

A person that is classified as a habitual drunk driver or has a felony conviction involving a motor vehicle faces indefinite license revocation. Indefinite license revocations are imposed for the following scenarios:

  • 2 or more offenses for operating under the influence (drugs or alcohol) within 7 years.
  • 3 or more offenses for operating under the influence (drugs or alcohol) within 10 years.
  • A conviction for operating under the influence causing a serious personal injury.
  • A conviction for operating under the influence causing death.
  • A felony conviction which results in license revocation.

Appealing a license revocation: Evidence MUST be consistent!

There is a long list of evidence that is required and must be submitted before a client can get an OHAO hearing:

  • Form 258: Current substance abuse evaluation.
  • Form 257: Petitioner’s background.
  • Drug Screen: 12 panel drug test with at least two integrity variables.
  • 3-6 Character Letters: At least 3 letters are required that verify sobriety of the petitioner.
  • DI4P-Physician Statement: This form is required when a person has a medical condition, or uses certain medications, that may have an impact on the person’s ability to operate a vehicle.
  • Optional: Evidence of attendance at support meetings, counseling, AA.
  • Optional: Other positive documentation such as completion of probation, Sobriety Court, etc.

Link to forms 257 and 258, license appeal hearing

Hiring an attorney that knows the OHAO process should be your first priority if you are thinking about a license appeal. The license restoration process is very particular and specialized. Just because you waited several years for a hearing, went to jail or need a license to work does not mean that you will win your hearing. You must present consistent credible evidence for your licensee restoration hearing. With certain hearing officers, your evidence muse be almost perfect or you can risk losing your hearing! Unfortunately, the standards set forth regarding the evidence are not entirely objective and are not always applied fairly.

Losing is not an option!

You will lose your hearing if your evidence does not prove that you are likely to remain sober. You must be able to c0mmunicate your case to the OHAO with supportive evidence that you understand your duty to protect the public and that it is never acceptable to operate a vehicle under the influence of alcohol or drugs, An experienced OHAO practitioner can increase your chances of winning an OHAO hearing by and prepare you for your evaluation. The following are examples of just a few ways that you can lose your OHAO hearing:

  • Probation has not been terminated.
  • A longer period of sobriety is necessary.
  • Character letters or other documentation are incomplete.
  • Inconsistent evidence and sobriety dates.
  • Failure to mention all prior criminal offenses.
  • Failure to know the AA steps if you are attending AA meetings.
  • Failure to obtain a doctor’s letter if you are taking certain medications for sleep, pain or psychological reasons.

By being well prepared by an experienced driver license appeal attorney, you are more likely to win your hearing. Unfortunately, if you lose your hearing, you are not eligible to file a request for another hearing for a period of one (1) year.  THIS IS WHY WE SAY “LOSING IS NOT AN OPTION!”

Getting you ready for your hearing

In the aftermath of Covid-19, OHAO hearings are now held remotely via Microsoft Teams.

Oftentimes we represent clients who have already attempted a hearing without the help of counsel. Even though they have winning cases, they lose simply because they did not know how to present their case to the OHAO. An individual that appears before the OHAO must be able to testify as to their past and also as to their present and future behavior. A person’s background regarding use of alcohol and drugs is scrutinized because the State of Michigan owes a huge responsibility to the drivers of Michigan, and the burden is on the petitioner to show they are again worthy of the privilege of driving.

Proceedings before the OHAO are very unique. First, most clients are surprised to hear that they are not adversarial, per se. Additionally, most are not aware that the hearing officer is going to ask probing and invasive questions about their substance abuse history. Lastly, and perhaps most importantly, many people do not realize there is a RIGHT way to approach these hearings and answer the questions.

That being said, our office has developed a paradigm for approaching all cases. From our first consultation we explain to clients the strengths and weaknesses of their case, and give an honest assessment of if the matter is worth pursuing. Our track record with these types of cases is very good, we generally win. We know how to win and what is expected because our lawyers have appeared before each OHAO officer as much as any other attorney in the State of Michigan.

Winning your license restoration hearing

When you win your license restoration hearing after serving a mandatory period of revocation, you will be allowed to drive with some restrictions and requirements. At the very least, the OHAO will require the installation of a Breath Alcohol Ignition Interlock Device (BAIID). In addition, the petitioner will only be allowed to drive for designated purposes, such as employment, or for designated days and hours.

After successfully abiding by the restrictions and requirements for a period of at least one (1) year, the individual may file an appeal to the OHAO for a FULL RESTORATION OF LICENSE. The same documentation (form 257, form 258, character letters, etc.) must be supplied to the OHAO, along with a current BAIID report, before a full license restoration hearing can be scheduled.,

The Breath Alcohol Ignition Interlock Device (BAIID) and BAIID Violations

In Michigan, you are considered a habitual drunk driver if:

  • Two or more DUI convictions within 7 years.
  • Three or more DUI convictions within 10 years.

Habitual offenders that are able to get their license restored will be allowed to operate a vehicle that has a BAIID device installed. As we have discussed, a person that has multiple driving under the influence convictions will not be eligible to appeal for a license until the minimum revocation period has been served. After serving the minimum revocation period, the party is required to prove his or her case before the OHAO. If you are well prepared and your evidence is consistent, you can expect to win your hearing and be granted a restricted license with the BAIID device.

A BAIID is a technical device that measures a person’s bodily alcohol content (BAC) and is connected with a motor vehicle’s ignition and other control systems. The BAIID keeps the vehicle from starting if the BAC is .025 or higher. The BAIID also includes a camera which records an image of the individual providing the sample. The device will also require random rolling retests while the person is driving the vehicle.

If there are alcohol readings or other BAIID violations after the device is installed, they will be reported to the Secretary of State as violations. If the BAIID has a false positive violation for alcohol, we strongly urge you to find a location as soon as you can to provide a breath sample that will nullify the false reading. You should also keep a notebook in the vehicle and write down anything to support your case should you be improperly violated.

BAIID VIOLATIONS: BAIID violations are classified as “minor” and “major” violations:

Major Violations:

  • Rolling retest violation: Failing to take the retest when prompted by the BAIID; or the random retest detects a BAC of .025 or higher, and there is no sample with a BAC of less than .025 within 5 minutes.
  • An arrest or conviction for drunk and/or drugged driving.
  • Tampering or circumventing with the BAIID.
  • Three minor violations within a monitoring period.
  • Removing the BAIID without having another device installed within 7 days.
  • Operating a vehicle without a properly installed BAIID.

VIOLATION CONSEQUENCES: Minor violations will result in a 3-month BAIID extension. Major violations will result in the immediate reinstatement of your original driver’s license revocation/denial. You may appeal that action to the Office of Hearings and Administrative Oversight within 14 days and should consult with a lawyer if you find yourself in this position.

Go for the win the first time!

We take the time to learn each client’s unique case history and work on tailoring each case to that individual’s circumstances. We believe in each client’s cause and fight aggressively to get petitioners back on the road. Our office has a strong record of winning cases like this. We have a proven formula that gets results.

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The following topics are covered in this article:

  • Criminal cases are pursued by “the state” or “government”, not by the alleged victim.
  • The prosecutor represents “the state” or “government”.
  • Once a domestic violence case is charged against someone, the alleged victim may be powerless to get it dropped or dismissed.
  • The prosecutor is reluctant to dismiss a domestic violence for various policy reasons and to avoid further violence by the defendant upon others.
  • If a witness does not cooperate and provide testimony at trial, the prosecutor may go forward at trial with prior statements of the witness.

Consequences of a Domestic Violence Conviction

A person that is charged with domestic violence faces numerous consequences to a his or her personal rights and reputation. First of all, being charged with domestic violence labels an otherwise peaceful person as violent and a trouble-maker. Also, there are other ramifications associated with a domestic violence conviction including:

  • Inability to possess firearms while in the court system or on bond, or during probation.
  • Inability to obtain a concealed weapons permit.
  • Inability to travel across international border to Canada, known as criminal inadmissibility.
  • Deportation for non-US citizens.
  • Getting fired from employment where working closely with people is required (medical care, nursing homes, etc.).

There are several other misdemeanors and felonies that fall under the umbrella of assault or that are charged along with domestic violence including:

  • Assault by strangulation or suffocation: This is an assault that involves putting pressure on the neck of someone that impedes normal breathing or circulation. Maximum Penalty: 10 years in prison.
  • Assault with a dangerous weapon: This is an assault with a gun, knife or another object that is used as a weapon such as a bat, pool stick or brick. Maximum Penalty: 4 years in prison.
  • Interfering with a crime report: It is a crime to try to stop someone from calling the police or filing a criminal report.

What does it mean? THE STATE PICKED UP THE CHARGES.

Criminal cases are pursued in the name of the government, not in the name of the victim. Once a criminal charge is authorized, the victim becomes a witness for the government. The government becomes the entity responsible for enforcing the laws and protecting the public. Or in other words, the state picks up the charges. Every criminal case is pursued by the government on behalf of the people within that jurisdiction. The prosecutor represents the government. For this reason, the court title of a criminal case looks like this:

• People of Michigan (plaintiff) vs. John Doe (defendant), or,
• People of Shelby Township (plaintiff) vs. John Doe (defendant), or,
• People of the City of Sterling Heights (plaintiff) vs. John Doe (defendant).
• For Federal cases: United States of America (plaintiff) vs. John Doe (defendant)

If a party (witness, victim) is notified to appear in court under a subpoena, the party may be held in contempt and face jail for fail to appear. Only the prosecutor or judge can dismiss a criminal case (domestic violence). The victim cannot dismiss the case. However, if a victim is unwilling to testify and the facts of the case are not egregious, this will be a factor that the prosecutor may consider in “dropping the charges”.

Why Won’t the Prosecutor Dismiss a Domestic Violence Case When the Victim Wants it Dropped?

While some domestic violence cases are isolated incidents and do not involve a serious act of assaultive conduct, others involve threats of serious injuries and potential death to another person. Therefore, the prosecutor does not want to drop a domestic violence case when there may be a risk of a future incident that could be prevented by prosecuting a violent individual. There is also a political component for a prosecutor that does not want to be seen as being weak by dismissing domestic violence cases.

Most domestic violence cases start out with a frantic and hysterical 911 call to the police when tempers are flaring. The person making the 911 call rarely knows all of the legal ramifications until later. Police involvement is certain following a 911 call. As I stated in another article, the party pressing domestic violence charges may immediately have regrets and want to get it dropped while the police are conducting an investigation or before any court proceedings occur.  Unfortunately, once an arrest is made and the domestic violence case is in the court system, getting it dropped is only possible by court order or by getting a rare deal from the prosecutor to dismiss. Getting a domestic violence case dropped is not impossible. Our Macomb County criminal defenses lawyers can better explain every legal scenario and how we have succeeded in getting a dismissal.

Now, public policy is a strong factor in the prosecution of domestic violence cases. There are several governmental agencies involved in the criminal process when someone is charged with domestic violence/assault. The government agencies that I am referring to are the police, prosecutor and the judge. Behind the scenes, the government also employs victim’s rights advocates and probation officers. The victim’s rights advocate becomes involved immediately to promote the rights of the victim during a pending criminal case. The probation department becomes involved to make sentence recommendations and monitor a defendant after a guilty plea or guilty verdict. All of these government agencies are usually located within the same building or government complex. All of these government agencies, with the exception of the court/judge, are aligned on the side of law enforcement; not on the side of the accused.  Here is a description of the governmental agencies involved in pushing a domestic violence case up the ladder in the judicial system:

  1. The police pass the case up to the prosecuting attorney,
  2. The prosecuting attorney then passes the case up to the court,
  3. The victim’s right advocate is a watchdog and acts as a voice for the victim,
  4. The case can be resolved at a pretial conference or a trial.
  5. A trial can be held before a judge or before a jury. 
  6. A person convicted of a domestic violence case is turned over to the Michigan Department of Corrections or probation department.

The Role of the Police in Domestic Violence/Assault Cases

Let’s talk about the role of the police, or first responders, to a domestic violence call. Long gone are the days when the police made a domestic call to a residence and let the alleged perpetrator go to the corner bar to cool off. The police can no longer make judgment calls as to who is right and who is wrong when they investigate domestic violence cases. Once an allegation of an assault is made (any intentional touching of another without consent), an arrest will occur. There is no such thing anymore as getting the case dropped on the spot. The reason for this attitude is based upon several valid grounds. First of all, the function of the police is to investigate and report their findings to the prosecutor, not determine guilt or innocence. Second of all, the police fear that a serious injury or death may occur should they fail to take action by removing the alleged suspect from the premises. Lastly, the police face serious criticism and potential liability if they fail to act and a party is later injured or killed. Therefore, public policy favors an arrest and issuance of a “no contact order” as an interim bond condition.

The Prosecutor’s Role in Domestic Violence/Assault Cases

A police investigation will consist of the police report, witness statements, photographs, 911 recording and other evidence. This information will be brought to the attention of the prosecutor for review.  In general, The Macomb County Prosecutor’s Office handles the prosecution of domestic violence and assault crimes which occur in Macomb County. However, in some cases, charges may be pursued as an ordinance violation by a Township or City Attorney.  In either scenario, it is the prosecutor that authorizes the criminal charge against the accused party.

The county prosecutors in Michigan are elected officials. As an elected official, it is in their best interest to show the public that they are tough on crime. Again, the public can be critical in situations when a prosecutor is weak on crime or easily drops cases. For this reason, prosecutors will object to a dismissal motion by defense counsel when a victim a victim fails to appear in court. Some prosecutors will go to great lengths to track down an uncooperative victim. Like the police, the prosecutor’s office needs to avoid scandal and any scenario where someone is injured or killed because of a failure of the system to protect the public. Upon authorizing criminal charges, the case is turned over to the court system for criminal legal proceedings. Misdemeanor domestic violence/assault cases are handled in the district courts. More serious assault crimes may be charged as a felony (assault with a dangerous weapon, strangulation, assault with intent to do great bodily harm, assault with intent to murder).

The Judge’s Role in Domestic Violence Cases

Once a case is in the court system, a judge is assigned to the case. Judges, like prosecutors, are elected officials in the State of Michigan. The judge’s role in a criminal case is to keep order, control the proceedings make rulings on evidence and answer motions or requests by the parties. In theory, a judge is impartial and does not concern himself or herself with the dispute between the parties. In some cases, a defendant may want the judge to act as the trier of fact without a jury. This is called a waiver trial or bench trial. This would empower the judge, acting alone, to render a verdict of guilty or not guilty without impaneling a jury. However, a person charged with a crime may not have a choice in the matter because either the prosecutor or judge may force a jury trial even when a defendant is willing to waive the same. In my opinion, judges tend to favor jury trials in cases with strong public policy, the presence of the media or where a certain verdict (by a judge without a jury) could subject the court to disapproval.

The Criminal Defense Lawyer’s Role in Domestic Violence Cases

The scales of justice are heavily weighted in favor of the prosecution in criminal proceedings. Police, prosecutors and judges want to avoid censure, avoid liability and remain popular in the eyes of the public. The jury trial process has its own problems and flaws. The individuals that are called to act a jurors may discriminate and possess biases that can make a fair decision impossible. If this sounds overwhelming and scary, it should. Only an experienced attorney can navigate someone in the criminal justice system and hope for a favorable outcome. A seasoned criminal defense lawyer knows when to work with the system, not against it. For starters, you may need answers to one or more of the following questions:

  • Can a no-contact order be lifted?
  • Can a domestic violence/assault case be dismissed without trial?
  • What happens if the victim in a domestic violence/assault case wants it dismissed?
  • What happens if the victim in a domestic violence/assault case fails to appear for trial?
  • Can I argue that I acted in self-defense in a domestic violence/assault trial?
  • Why am I charged with domestic violence/assault if I was only trying to avoid a fight?
  • Will the victim be charged with a crime if he or she changes the story?
  • *Will the victim be charged with contempt of court if he or she fails to obey a court notice or subpoena?
  • Can the victim file a supplemental report with the police or prosecutor?
  • What does it mean when a criminal case is dismissed without prejudice?
  • What does it mean when a criminal case is dismissed with prejudice?
  • Can the case proceed to trial without a witness and only the police report and witness statements?

*It is unethical for an attorney to advise anyone to ignore a court notice or subpoena.

Can the Prosecutor Move Forward with a Domestic Violence Case if the Victim or other Witnesses Fail to Testify?

The answer is YES, a prosecutor can move forward with a domestic violence case against someone even if the victim or key witnesses do not appear, or fail to testify, at trial. When a witness does not cooperate or agree to testify, the prosecutor can introduce witness statements as evidence at trial. The witness statements must pass the test as being “testimonial” and reliable“. Testimonial statements may include 911 calls or statements made in prior hearings or during police interrogations. Defense attorneys will argue against the use of witness statements pursuant to the confrontation clause of the United States Constitution which gives the accused party the right to confront and cross examine his or her accusers.  When a prosecutor attempts to introduce a statement without having a witness to back it up, it is considered hearsay and subject to exclusion by the judge unless it meets certain rules. Although the rules are subjective and ambiguous and the out of court statements are considered hearsay, it is possible for the statements to be used at trial against a defendant charged with domestic violence or an assault crime.

There are always ways to set the record straight to get a favorable resolution in the court system

Please feel free to browse through our blogs and articles which discuss various topics in relation to assault and domestic/violence assault crimes:

Defending Domestic Violence, Assault with a Dangerous Weapon, Assault by Strangulation in Macomb County

How Am I Being Charged With Domestic Violence / Assault When I Acted In Self-Defense?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called “he said/she said” cases)?

Imposition of No Contact Orders for Persons Charged with Michigan Criminal Offenses; Assault, Stalking, Domestic Violence

When a Misdemeanor Assault or Domestic Violence Case Escalates to a Felony

Part 1: Domestic Violence Cases in Macomb and Oakland County, Michigan, Investigation, Arrest and Statements by the Accused

Part 2: Domestic Violence Cases in Macomb and Oakland County, No-Contact Orders, Dismissals for First Offenders

Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

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police-cars

Royal Oak is a great place to live, work or visit. The City of Royal Oak is centrally located in Oakland County with a wide range of restaurants, bars and boutiques. Royal Oak gets its share of visitors from just about everywhere including from out of state and Canada. Royal has a vibrant downtown which offers a wide range of things to do. Here are some resources of the attractions and things to do in Royal Oak:

The bars are clubs in Royal Oak are some of the best in Metro Detroit. Getting in trouble after you leave the bars is always unfortunate and can ruin an otherwise good time. If you manage to get into trouble in the City of Royal Oak for a drunk driving, disorderly conduct,  misdemeanor or felony,  you can expect to be required to appear for court proceedings at the 44th District Court. Court proceedings may be scheduled for a remote (ZOOM) or in-person appearance.

The 44th District Court Covers Criminal Docket for the Cities of Royal Oak and Berkley

The 44th District Court is located at 400 E 11 Mile Road, Royal Oak, MI 48067, Phone: 248-246-3600

Speaking from experience, consider yourself lucky if you get into trouble in Royal Oak and not some other district. The Judges in Royal Oak are the most pleasant and amongst the fairest Judges that you will find anywhere in Michigan.  There are two (2) Judges that preside over cases at the 44th District Court. Based upon our experience handling criminal cases in the 44th District Court, the Judges are some the best in Michigan and they will bend over backwards to give a person a break when one is deserved. Depending on the circumstances our office may proactively recommend specific programs (substance abuse, anger management, impulse control) if we believe that it will help our clients avoid future problems and when proactive measures can be used in the court system.

The 44th District Court has jurisdiction over misdemeanors and felonies. A misdemeanor is defined as a crime punishable by 1 year or less in jail. A felony is a crime that is punishable by more than 1 year, up to life in prison. Trial proceedings for felony matters are handled in the circuit court. According to the United States Justice Department, over 90% of all criminal cases are resolved without trial. Based upon this statistic and what we see occurring everyday in the court system, there is a very good chance that your case will be resolved without a trial.

Links to the 44th District Court:

You may also pay traffic tickets on-line without a court appearance. We recommend that your fight every traffic ticket as a wise investment in your record and to keep your insurance costs under control.

Court Process for Misdemeanors in the 44th District Court

1. Arraignment: The arraignment is the first time that you will appear before a Judge or Magistrate regarding your case. The following will occur at your arraignment:  
  • The court will advise you of your charges.
  • You will be required to enter a plea (we ALWAYS plead not guilty or stand mute).
  • The court will establish bond conditions such as alcohol testing.
  • Your next court date will be scheduled.
Certain courts will allow the arraignment to be waived or handle the arraignment on the same date as the pretrial conference which is much more logical and convenient.
 
2.  Alcohol and Drug Testing: If alcohol and/or drug testing is imposed, you will be instructed by the court when and where to test. By following these instructions, you will avoid a bond violation hearing for non-compliance. Here is a list of the various methods to test for alcohol and drugs:
  • EtG (urine) test: EtG is used to detect recent alcohol consumption in a urine sample. The test can confirm that there has been alcohol in the body up to five days after consumption.
  • Random Alcohol Testing: A device called a breathalyzer is used to measure blood alcohol content (BAC) from a sample of air exhaled from a person’s lungs. You may be asked to provide random breath test samples at a designated location on a breathalyzer instrument.
  • SCRAM Monitor:  SCRAM Continuous Alcohol Monitoring ankle bracelet provides continuous transdermal alcohol testing for by automatically sampling the wearer’s perspiration every 30 minutes. Some clients prefer SCRAM Monitoring over other methods of testing while others claim that it is embarrassing and uncomfortable. 
  • SoberLInk: This is the handheld breathalyzer that fits in a pocket or purse and requires breath samples at various intervals during the day. It uses facial recognition and the information is downloaded to the provider. 
3. Pretrial conference: The pretrial conference is scheduled after the arraignment. This is the proceeding where our attorneys will speak with the prosecutor to discuss various issues in a criminal case or work out a plea bargain. Pretrial proceedings may be conducted on an in-person basis or via zoom remote hearing. 
 
4. Probation presentence interview:  In the discretion of the Judge, you may be required to appear for an appointment with one of the court’s probation officers following the pretrial conference.  The probation officer will conduct an interview and prepare a report with recommendations for the Judge to consider at the time of sentencing. You should dress neatly, be cooperative, and stick to answering the questions that are asked regarding your circumstances in life and use of alcohol and control substances. Bring clean copies of any matters that you want the probation officer to consider on your behalf (counseling, AA sign-in sheets, letters of recommendation). 
 
5. Sentencing: Sentencing occurs on a date after you complete a probation interview i. We will have an opportunity to review the probation officer’s report before the actual sentencing before the judge. The following is a list of potential terms of your sentence: 
  • Court fines and costs approximately $1,000 – $1,500.
  • Probation for a period of not to exceed two (2) years (probation is not likely to be scheduled for more than one (1) year unless there are aggravating factors).
  • Continuation of testing for alcohol
  • Possible: Attendance of a substance abuse program, Impact Panel, Alcohol Awareness Class.
  • Possible: Community service.
  • Probation may be non–reporting or reporting (reporting probation is not a big deal and only means that you have to report to the probation officer once per month).
  • You may file for early termination of probation after you have served 50% of the total term of probation without any major violations. 
  • If you intend to travel out of state while you are in the court system (on bond or during a period of probation) you will need to file a request to travel with the court . The Court may require you to continue testing while you are traveling.
  • Oakland County WWAM community service.
  • Restitution for any damages or injuries.
  • Municipal response (police) costs.

Disorderly conduct is a criminal offense which is classified as a misdemeanor. It is also one of the most common crimes that we frequently see on the 44th District Court dockets along with drunk driving and domestic violence. 

What is Considered Disorderly Conduct in Royal Oak?

Legally speaking, the City of Royal Oak defines Disorderly Conduct as follows:  § 278-35. Disorderly conduct

A person commits the offense of disorderly conduct if he or she:
A. Engages in fighting or in violent, tumultuous or threatening behavior;
B. Makes unreasonable noise which tends to cause a public danger, alarm, disorder or nuisance;
C. Uses threatening, abusive or obscene language or makes an obscene gesture, which by their very use inflict injury or tend to incite a breach of the peace;
D. Without lawful authority, disturbs any lawful assembly or meeting of persons;
E. Obstructs vehicular or pedestrian traffic;
F. Possesses or consumes alcoholic liquor in any public park, public place of amusement, or area under the jurisdiction of the City of Royal Oak that is owned and/or administered by the City of Royal Oak;
G. Urinates in a public place, except at public toilets.
H. Engages in an illegal occupation or business;
I. Loiters in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed;
J. Knowingly loiters in or about a place where an illegal occupation or business is being conducted;
K. Is found jostling or roughly crowding people unnecessarily in a public place;
L. Commits the offense of failure as a disorderly person to disperse if he or she participates with two more other persons in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, and intentionally refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in executing or enforcing the law;
M. Permits or suffers any place occupied or controlled by him or her to be a resort of noisy, boisterous, or disorderly persons.
N. A person commits the offense of public intoxication if he or she appears in a public place under the influence of alcohol, a controlled substance, other drugs or combination thereof and he or she is either endangering directly the safety of another person or of property, or is acting in a manner that causes a public disturbance.
O. Commits the offense of window peeping.

Examples of Disorderly Conduct, Public Intoxication Cases, Peeing in Public

Practically speaking, the disorderly conduct state statute and local city ordinances cover a wide range of behavior that many might not realize amounts to criminal activity. There are a several scenarios that can result in being charged with disorderly conduct (a/k/a drunken disorderly or public intoxication). Here is just of sample of cases that we have seen:

  • Getting forcibly removed from a bar, only to find the police outside, who witness the scene and issue a disorderly citation.
  • Creating a disturbance of any kind, or fighting, after consumption of alcohol.
  • Entering the wrong house in a neighborhood after consuming alcohol (this happens more often than you would think).
  • Laying down on the sidewalk intoxicated or vomiting in a public place.
  • Having sex in public (which can also lead to more serious sex crimes such as indecent exposure or gross indecency).
  • Peeing in public.

Disturbing the peace is another prevalent  misdemeanor crime that occurs in situations where a person is overly boisterous in public place. Disturbing the peace is a 1931 law which is found at MCL 750.170 and states as follows:

Disturbance of lawful meetings—Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public building, grounds or park, or at any election or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor.

Felony Charges possible if conduct gets out of hand 

The very nature of disorderly conduct, in our opinion, is that it is a fallback charge when conduct does not rise to the level of a more serious crime. Word to the wise, if being questioned by police, be be polite and orderly. Lashing out towards law enforcement can turn a 90 day disorderly conduct misdemeanor charge into a felony such as  resisting and obstructing which can carry 2 years in prison. Likewise, driving off or running from the police is always a bad idea because once apprehended, the offender can be charged with fleeing and eluding, a felony with various penalties. It is also important to know that you are never required to make a statement or talk to the police if you are questioned. You have a constitutional right to remain silent.

Hot Spots for Disorderly Conduct: Royal Oak, Ferndale, St. Clair Shores, Utica, Detroit

Mostly, we see disorderly conduct, or alcohol related cases (urinating in public, indecent exposure), arising in areas where there is a concentration of bars and people are assembled on the streets for various reasons. There is no limitation to where a disorderly conduct offense can occur. Nonetheless, the vast majority of cases occur in areas which offer a popular bar/nightclub scene like Royal Oak, Detroit, St. Clair Shores (Nautical Mile), downtown Utica, and downtown Ferndale.  Detroit sports venues and sports bars are also places where the police are watching and charging exuberant fans with disorderly conduct.  While disorderly conduct cases are always one of the most prevalent on every district court docket, I would say that we see more of them occur on the Wednesday before Thanksgiving (one of the biggest ‘bar nights’) and Tigers opening day, than at any other time.

HYTA or Delayed Sentence Statute Utilized to Get a CASE DISMISSED!

Most of the people we see charged with this offense are young adults at a crucial stage in life working towards a college degree or advancing in a career.  If you are charged with Disorderly Conduct, do not make the fatal mistake of pleading guilty without first knowing all of your options. Contacting an experienced criminal defense lawyer should be your first priority. You may be eligible for HYTA if you are age 18 but before age 26. HYTA allows a youthful offender to have a criminal case sealed and expunged at the end of a period of probation. There are other provisions of law that can be utilized to get a case dismissed such as a delayed sentence or diversion.

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