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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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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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duistop

Introduction

This ABDO LAW publication is based upon our extensive experience handling drunk driving cases  in all Macomb County District Courts.

For starters, I would say that 90% of all first time drunk driving offenses are reduced to “impaired driving” and no jail is imposed. A restricted license is issued by the Secretary of State which allows driving on. a restricted basis for 90 days.  A person may obtain a “picture license” after the 90 day restricted period expires. The Michigan Criminal Jury Instruction (MCJI 15.3) defines impaired driving as follows:

To prove that the defendant operated while visibly impaired, the prosecutor must prove beyond a reasonable doubt that, due to the [drinking of alcohol / use or consumption of a controlled substance / use or consumption of an intoxicating substance / use or consumption of a combination of (alcohol / a controlled substance / an intoxicating substance)], the defendant drove with less ability than would an ordinary careful driver. The defendant’s driving ability must have been lessened to the point that it would have been noticed by another person.

Actual Intoxication is irrelevant with BAC .08% or .17% or any presence of a controlled substance

When a person is arrested for any driving under the influence (by alcohol or drugs) in Michigan, the police will ask the person to take a chemical test to determine the extent of alcohol or presence of drugs within the blood. A person’s blood, urine and breath may be tested to determine the person’s blood alcohol content (BAC) or drug consumption upon request by the arresting law enforcement agency. The test results are admissible in court proceedings to establish legal intoxication should the person be charged with operating while intoxicated or impaired driving. In Michigan, a person is considered to be legally intoxicated (OWI) if the blood alcohol test is .08% or greater. Elevated blood alcohol of levels of .17% or greater will support enhanced criminal charges known as “high blood alcohol content” or “super drunk”.   The legal intoxicated limits in Michigan are:

You may still be charged with impaired driving if you test below .08!

There is no automatic presumption that a person is “impaired” or “intoxicated” when the test results fall below .08. However, a person that can’t hold their liquor can still be charged with impaired driving, or drunk driving, even if the BAC result comes back below .08. The test result can be used as evidence of alcohol consumption. In addition, the police officer, or other witnesses, may provide testimony at trial regarding any conduct or objective signs of impairment or intoxication. Objective signs of impairment may include the following: odor of alcohol coming from the driver, red, watery eyes, erratic driving (weaving) and slurred speech. In addition, the police assess a driver’s ability to perform various field sobriety tests. Field sobriety tests are designed to test a driver’s balance and motor skills. Police may ask a driver to perform tasks such as walking heel-to-toe in a straight line, standing on one leg, or reciting the alphabet backwards. In addition to the testimony of the police or witnesses, the BAC test results are also admissible in evidence at trial to show alcohol consumption.

Blood Alcohol Content (BAC) Charts and Graphs

Alcohol_chart men and women.gif

Blood alcohol content (BAC) charts are a worthy source of information to calculate the amount of alcohol consumption that is required to be considered legally intoxicated. These charts provide a fairly accurate estimate of the amount of alcohol within a person’s blood based upon two key variables; body weight and the number of drinks consumed. However, the charts do not take individual metabolism rates into consideration. Metabolism can be affected by several factors, such as body temperature, the type of alcoholic beverage consumed, and the amount and type of food consumed.  BAC Reference Chart

ESTIMATION: How long does it take for alcohol to be eliminated from your system?

The normal body will metabolize alcohol between .012 percent and .016 percent per hour. Numerous variables can influence the elimination rate of alcohol in the human body. Most charts that I have seen apply an elimination rate of .015 per hour. Therefore, a male weighing about 175 pounds who consumes 6 beers, containing 4.5% alcohol, within 3 hours would register a blood alcohol content of .08. It would take approximately 1 hour after the last alcoholic beverage was consumed to register less than .08 and it would take approximately 5 hours (0.0) to be completely sober.

Factors that affect alcohol elimination rate

The passage of time is the only way that alcohol will be eliminated from the human body. However, the elimination rate, or speed of elimination, is also dependent upon:

  • Medications: Many prescription and over-the-counter meds have dangerous interactions with alcohol. Ask your doctor whether drinking is safe for you if you take any medications.
  • Sex: Studies have shown that women take longer than men to process alcohol.
  • Age: As we age, the speed of alcohol processing slows down.
  • Body size: The less you weigh, the less water you have in your body. Alcohol goes into the water in your blood — but if you have less water, your blood alcohol concentration (BAC) will be higher. Smaller people can drink the same amount of alcohol as larger people but have a higher BAC.
  • Health conditions: Kidney, liver and stomach conditions make it harder for your body to process alcohol.

How long can tests detect alcohol in the body?

When it comes to “passing” an alcohol test, the longer the period of time that has expired, the better! More sensitive or higher quality tests can pick up smaller amounts of alcohol after a longer period of time.  In general, this is the maximum amount of time tests can detect alcohol after you consume it:

  • Blood test: 12 hours.
  • Breath test: 24 hours.
  • Saliva test: 48 hours.
  • Urine test: five days.
  • Hair test: 90 days.

Should I refuse to take a breath or blood test?

breath test.jpg

If a person refuses to take the breath, blood or urine test which is requested by the police, the following sanctions will be imposed:

  • The police will obtain a court order for a blood sample to test for drugs and alcohol.
  • The person loses his or her right to have an independent urine or blood test conducted.
  • 6 points will be added to the driving record
  • License suspension will be imposed for 1 year, subject to an appeal to circuit court.
  • Drunk driving charges will be filed in the court system.
  • Additional license sanctions will be imposed upon conviction for the underlying drinking and driving offense.

Michigan Implied Consent Law (Michigan Compiled Law 257.625c)

Michigan’s Implied Consent law provides that a person arrested for operating a vehicle while intoxicated or impaired by an alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath.

Police May Obtain a Court Order for Blood Test

The police may obtain a court order for a blood test when confronted with a suspect that refuses a chemical test offered by the police.

Suspect’s Right to a Secondary or Independent Test

The right to take an independent test of your own choice (blood, breath or urine) is conditional upon first submitting to the test which is offered by the police. The right to an independent test is lost should a person that is arrested for operating while intoxicated refuse the test offered by the police.

Implied Consent Hearings: Sanctions for Unreasonable Refusals

As I already mentioned, the police may obtain a court order for a blood test when a person refuses to voluntarily submit to a breath, blood or urine test. This means that the person will still face operating while intoxicated criminal charges when the blood test result is returned to the police from the testing facility. In addition, the person who has refused an alcohol test faces license sanctions by the Secretary of State.

A person that refuses the chemical test offered by the police is given an opportunity to an administrative hearing (aka: implied consent hearing) before a Secretary of State referee to explain the circumstances of the refusal. MCL 257.625f limits the issues appealable at a hearing to the following:

1. Whether the peace officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.
4. Whether you were advised of your rights under MCL 257.625a
Refusals based upon failure to understand the law are not considered reasonable since we are dealing with an “implied consent” law. Again, the implied consent law means that you consent to the test by accepting the privilege to operate a vehicle in the State of Michigan. Other common refusals are known as technical refusals. A technical refusal usually means that the suspect gave an insufficient sample. An insufficient sample may occur when someone tries to fool the machine by not placing their lips tightly on the breathalyzer straw or by providing a soft or side blow into the machine.

An attorney should be retained for representation at the implied consent hearing to fully explore all possible defenses. If the police officer fails to appear, or did not follow the testing protocol and procedure, the implied consent hearing will be resolved in favor of the petitioner.

A person that loses an implied consent hearing faces license suspension for a period of 1 year and 6 points is placed on the driving record. A second refusal within 7 years results in a suspension of 2 years. This is a separate consequence from any subsequent convictions resulting from the traffic stop.

Implied Consent Suspension May be Appealed in the Circuit Court Based Upon Hardship or Legal Grounds

If you lose your implied consent hearing, you may file an appeal in the court system on the following grounds.

Appeals based upon hardship: As I mentioned, you face suspension of your license for 1 year upon losing first implied consent hearing. A person facing a first time implied consent suspension has the right to file a circuit court appeal to request a restricted license based upon need or “hardship”. A hardship appeals requires a showing that a person needs to operate a vehicle for employment or education and both of the following exist:

  • A mass transit system is not available to provide the necessities of transportation, and,
  • No other person with in the household of the petitioner can supply transportation.

An appeal based upon hardship is the most common type of implied consent appeal that we file on behalf of clients. Upon winning a hardship appeal, a restricted license is granted for remaining duration of the implied consent suspension. Hardship appeals are filed in the circuit court where the underlying offense occurred. In addition, most circuit court judges will require a substance abuse evaluation for the hardship appeal. The c

Appeals based upon legal grounds: Any person may appeal an implied consent suspension based upon legal grounds. An appeal based upon legal grounds means that you are asking a circuit court judge to overrule the decision of the Secretary of State referee because:

  • Made upon unlawful procedure resulting in material prejudice to the petitioner.
  • Not supported by substantial, material, and competent evidence on the whole record.
  • Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

Practical Considerations Based Upon Experience Handling Drunk Driving Cases in Macomb County

The following are some practical considerations regarding our vast experience handling drunk driving cases for more than 40 years:

  • Most drunk driving cases (90%) are resolved by a plea bargain rather than jury trial.
  • First offenses are usually reduced to operating while impaired.
  • Jail is rarely imposed for a first time DUI or impaired driving conviction.
  • Insurance costs will increase substantially for any drinking/drugged driving conviction.
  • Jail is mandatory for a felony (third offense) conviction for a minimum of 30 days, not 1 year.
  • High BAC or Super DUI (.17% or greater) can also be reduced to impaired driving but may require a deviation request.
  • Getting a drunk driving reduced to a non-drinking offense, such as careless driving, is possible but difficult and rare.
  • A drunk driving or impaired driving conviction will preclude travel into Canada (see criminal inadmissibility).
  • State of Michigan sanctions upon conviction for a drinking/drugged driving offense (points, license sanctions and driver responsibility fees are mandatory and not negotiable to lesser amounts or periods of time).

Here are just a few factors that can have an impact on any 1st, 2nd or 3rd time drunk driving case:

  • Was the test result .17% or greater (resulting in a charge of High BAC or Super DUI)?
  • Was there an accident resulting in personal injuries or property damage?
  • Does the offender have any prior criminal record involving substance abuse or alcohol?
  • Was the offender cooperative with the police?
  • Does the offender have any prior drunk driving or impaired driving convictions?
  • Did the offender commit any other offenses along with the offense of drunk driving such as fleeing the police or resisting arrest?

The potential sentence that can be imposed for a drunk subsequent drunk driving (second offense and third offensee) is greater than that which can be imposed for a first time offense.

 Penalties for OWI 1st, OWI 2nd, OWI 3rd

 

FIRST OFFENSE:  What happens if this is my first offense for drunk driving?  First time offenders charged with “operating while intoxicated” can expect the prosecutor to agree to reduce the charge to the lesser offense of “operating while impaired”.  This is true in more than 90% of the first offense cases that we have handled in the Macomb County District Courts assuming that there are not any egregious facts or circumstances associated with an individual’s first time drunk driving offense.  Negotiations to seek a plea bargain or reduction can begin as soon as an attorney is hired and are concluded at a pretrial conference or other later stage in the proceedings. I can say that our firm has never had a first time offender get jail time in Macomb County. The following penalties are typically associated for a first offense “operating while impaired”:

  • Fines and costs of $1,000.00 or more.
  • Mandatory substance abuse assessment.
  • Probation for period of 1 year which may be reporting or non-reporting.
  • Random alcohol and drug testing in the discretion of the sentencing Judge.
  • Possible counseling or attendance of 1 or more short substance abuse programs in the discretion of the sentencing Judge.
  • Restrictions on out-of-state travel, subject to modification.
  • MANDATORY: License restrictions for 90 days (employment, school, medical, court ordered activities allowed).
  • MANDATORY: 4 points placed on driving record.

SECOND OFFENSE:  What happens if this is my second offense for drunk driving?

A conviction for a DUI second offense carries greater consequences within the Court system and by the State of Michigan. It is first important to explain the three (3) different types of “second offense” scenarios that a client may be facing:

  • Prior DUI within 7 years: A true second offense is one that occur within 7 years of a prior drinking/drugged driving conviction. An offender that is convicted of a true second offense OWI within 7 years of a previous offense, or who gets a third offense reduced to a second offense, faces the following:
    • Probation for up to 2 years.
    • Possible jail, community service, vehicle immobilization.
    • Random testing, longer term counseling,
    • MANDATORY license revocation for a minimum of 1 year (NO DRIVING).
    • MANDATORY: 6 points placed on driving record.

    This does not mean that all second time offenders get jail. In fact, second time OWI offenders can avoid jail by being proactive. By being proactive, I mean getting into a substance abuse counseling, attending AA meetings, attending on-line substance abuse classes. Lawyers that specialize in drunk driving cases will be able to provide you with local resources to get help.

  • DUI 3rd reduced to DUI 2nd: Another second offense scenario exists where the offender is charged with a third offense (felony) but the charge is reduced to a second offense (misdemeanor). ABDO LAW has previously published an article which covers a third lifetime offense for drinking/drugged driving.  Please refer to the link for further information regarding third time/felony DUI.
  • Prior DUI more than 7 years old:  Another second offense situation exists where the offender has a prior drinking/drugged driving conviction that is more than 7 years old. An offense that is greater than 7 years old cannot be used for purpose of sentence enhancement. However, it may remain on a person’s record and be visible to the prosecutor, probation officer and Judge.An offender that has a prior offense which is more than 7 years old is not “getting away scot-free” but will avoid the mandatory license revocation component and will face sentencing under the first offender laws with some concern placed upon the prior record of the offender.  Generally, older offenses have less impact than more recent offenses. For example, an offense which is 8 years old will be more relevant than one which is 20 years old.
  • Michigan Secretary of State link for drunk driving first, second and third maximum penalties.

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youthful offender

Effective October 1, 2021

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

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

  • The court does not enter a judgment of conviction,
  • The record is sealed,
  • HYTA may be used for an unlimited number of eligible criminal offenses,
  • HYTA is NEVER AUTOMATIC and it must be accepted by the Court and approved by the prosecutor under certain circumstances, 
  • The offense(s) taken under HYTA are not required to be disclosed on applications, and
  • The case is dismissed upon compliance with conditions laid out by the court!  

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

HYTA is not available for juveniles (under age 18) or for offenders that are age 26 or older. However, there are other provisions of law that can benefit juveniles and adult offenders over age 25.

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

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

According to the HYTA law (MCL 762.11), the prosecutor shall consult with the victim regarding the applicability of this section. The consent of the prosecutor may be required depending upon the age of the defendant at the time of the alleged offense:

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

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

You can get HYTA more than once and other helpful information

The HYTA law has many special features including the following:

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

The following offenses are not eligible for HYTA

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

  • Traffic crimes (DWLS, Fail to Stop at the Scene of an Accident),
  • Drunk driving, Super Drunk Driving,
  • Major controlled substance offenses,
  • Major criminal sexual conduct offenses,
  • A felony for which the maximum penalty is imprisonment for life.

Talk to an experienced criminal defense lawyer that knows the local courts and ways to get you out of the system with the best possible outcome.

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

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

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

Most prevalent crimes are eligible for HYTA

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

HYTA is not available in the federal court system. However, the federal court system does have programs, such as diversion or pardon, that allows for a federal crime to be dismissed.

Traffic Offenses and Drunk Drunk are Not Eligible for HYTA

Although traffic offenses and Drunk Driving offenses are not eligible for HYTA, we are often able to get them amended to avoid any traffic points and also avoid a criminal conviction.

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

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

Other Michigan provisions which are similar to HYTA

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

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

MCL 333.7411 is used to get drug crimes dismissed.

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

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assault-bottle

 “Assault with a Dangerous Weapon” – Up to 4 Years in prison

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

As you read through this, it is important for you to know that ALL criminal charges are pursued by “THE GOVERNMENT”. It is the ALWAYS “the state” that prosecutes individuals for violating laws within the state’s jurisdiction. The state does so by utilizing state prosecutors (attorney general), county prosecutors and municipal prosecutors to enforce the laws which are in place to protect property and people in our state under the theory that individuals do not have the resources to go after those that commit crimes to the extent that the government does. The state uses it law enforcement agencies to investigate crimes and manage the movement of prisoners to courts. The court has vast powers to set bond, impose no-contact orders and order witnesses to appear in court through its subpoena powers. For this reason and other public policy reasons, it is difficult for a victim to get a case dismissed that is “in the system”. Getting a sharp local criminal defense lawyer is your best course of action to get a case under control when a victim does not want to cooperate.

List of Michigan Assault/Domestic Violence Crimes and Maximum Penalty

According to Michigan Crime Statistics, over 100,000 assault crimes  occur each year in the State of Michigan. The MICR breaks down the types of assaults with over 30,000 assaults involving a deadly weapon and over 60,000 as domestic violence. Crimes are classified in Michigan as felonies or misdemeanors.  A felony is considered a more serious offense and is defined as a crime that can carry more than one (1) year in jail – up to life in prison. A misdemeanor is a less serious crime that is defined as a crime that can carry a maximum of one (1) year in jail. Assault with a deadly weapon is a felony.

The following is a partial list of misdemeanor and felony assault crimes as contained in the Michigan Penal Code:

Misdemeanor Assault Crimes Maximum Punishment

  • Assault & Battery: 93 days jail
  • Domestic Violence: 93 days jail
  • Aggravated Assault: 1 year jail
  • Aggravated Domestic Violence: 1 year jail

Felony Assault Crimes Maximum Punishment

  • Assault with a Dangerous Weapon (ADW): 4 years prison
  • Felony Domestic Violence (3rd Offense): 5 years prison
  • Assault with Intent to do Great Bodily Harm: 10 years prison
  • Assault by Strangulation: 10 years prison
  • Assault with Intent to Murder: Up to life in prison

Once an assault crime is on your record, it can lead to devastating consequences that will last a lifetime. In this publication, we will discuss ways that to successfully defend assault crimes against all odds and how to dodge felony convictions. We will also discuss situations whereby an alleged victim or injured party wants the case dismissed or fails to appear for a trial.

 Assault with a Dangerous Weapon: A pool stick, car, or dangerous object can be considered a deadly weapon!

Threatening another person with an object during an altercation (assault with a deadly weapon) can result in serious felony charges. Assault with a dangerous weapon (ADW), aka felonious assault, involves the threat or use of force, with a conventional weapon (knife, gun, ), or with an object that is capable of being used as a deadly weapon (golf club, bat, pool stick, car), putting another person in fear of an assault with or without making actual physical contact with the other person. Assault with a deadly weapon is consistently one of the most prevalent felony crimes in Macomb County Courts.   Assault with a dangerous weapon is a serious felony which is punishable by up to 4 years in prison. Actual physical contact or an injury is not required.

Assault by Strangulation or Suffocation: Punishable by up to 10 years in prison!

This charge is more common than you would think. The statute defines assault by strangulation or suffocation as an assault that impedes normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person. Assault by strangulation or suffocation (MCL 750.84) is a felony which carries up to 10 years in prison. This offense arises most often in domestic altercations. Placing someone in a choke-hold or grabbing someone by the throat can constitute an assault by strangulation. There is very little proof required to pursue this charge. There is no requirement of medical attention or an actual injury to pursue a charge of assault by strangulation. All that is required is a statement by the victim that he or she was choked and unable to breath momentary. The statement may be one that is made during the 911 call and is recorded or a statement that is made during the police investigation. The alleged victim may have exaggerated the episode and an innocent party winds up being charged with a serious felony. The assault crime defense lawyer can usually find a way to avoid a felony conviction and jail time. Getting the victim on board to drop the charges is the best way to get the case under control. It can be very delicate, but there is usually a way to reach the alleged victim even if a “no-contact order” is in place.  If the victim does not want to testify, the defense attorney will encourage the victim to contact the prosecutor.  Don’t just take a plea deal when your life is on the line. Getting a local experienced Macomb County criminal defense attorney is your best course of action if you are charged with a misdemeanor assault, felony assault or domestic violence.

The initial arrest, bond conditions and the next step in a domestic violence case

If you are arrested for an assault or domestic violence crime, do not resist or say anything to the police except: “I’m exercising my right constitutional right to remain silent.” Asking the police officer if you can contact a lawyer (from your home or cell phone) is not an unreasonable request. The arresting officer may or may not allow for you to make a phone call. At your earliest opportunity, you or a family member should contact a lawyer for guidance. Being detained will seem like a lifetime but be assured that at some point a bond will be set and bond conditions imposed. The bond will usually require that money be posted with the court or with a bondsman. Typical bond conditions include:

  • No contact, direct or indirect, with the alleged victim.
  • Random testing for drugs and/or alcohol.
  • No travel outside of Michigan without court approval.

MOTION TO REDUCE BOND: You have a better chance to get a low cash bond or a personal bond with an attorney present at your arraignment/bond hearing. However, it is not always possible to get a lawyer on such short notice. Should the court set an unreasonably high bond, a motion for bond modification can be filed to reduce bond and/or request modifications of any bond conditions. .

NO-CONTACT: You may not be able to return to your own house! If you have been living with the alleged victim and the alleged victim remains in the home, you may not be allowed to return to the home if a no-contact order is in place. Of course, this scenario has ridiculous implications for someone that has nowhere else to live, does not have access to clothes or other necessities. A police escort may be requested to gain access to the home for personal belongings. If the other person is not on the title and refuses to vacate the home, an eviction may need to be filed to regain possession. The eviction process can take several days or months, depending upon the circumstances.

TESTING FOR DRUGS AND ALCOHOL: Alcohol, drugs or mental health are often a factor in domestic violence cases. For this reason, drug and alcohol testing is often ordered as a condition of bond and release from jail. There are various forms of testing which include: random testing for drugs and alcohol, wearing an ankle alcohol monitor (SCRAM), carrying a device that requires alcohol testing at various intervals (SoberLink).

Parenting time with minors:  Parenting time will be difficult and sometimes impossible while a no-contact order is place. If the domestic violence case is viewed as extreme in the eyes of the court, parenting time may be halted until the accused party is cleared for visitation by professionals and the court. The court handling the domestic violence case may allow limited contact with the alleged victim for purpose of transacting parenting time. Many times, parenting time must be re-visited at the court with underlying jurisdiction over child custody.

Getting a lawyer: Hiring a lawyer is a daunting experience but can be made less painful by getting a local criminal defense lawyer that can clearly explain your options and give you straight forward information about legal fees.

What if the alleged victim does not want to testify and wants the case dismissed?

In more than fifty (50%) percent of the domestic violence cases that our criminal defense law firm handles, the alleged victim does not want to pursue the charges and wants the case dismissed. The problem is that the victim does not know how to go about contacting the prosecutor and the prosecutor may not be receptive to dismissing the case. In addition, there are policy reasons that make it difficult to get a domestic violence case dropped as we explain in another publication. The criminal defense may be unable to speak to the alleged victim because of a “no-contact order” and doesn’t want to accused of witness tampering pursuant to MCL 750.122.  An alleged victim that wants to change a police report may face charges for filing a false police report if the second report is different than the first report.  The alleged victim may also be threatened to be held in contempt of court for failure to comply with a subpoena (order to appear for a hearing to testify).

Under certain circumstances, the prosecutor may attempt to proceed without the alleged victim by introducing the statements of the alleged victim which were made during the criminal investigation. The prosecutor should expect strong objections from defense counsel in this scenario based upon the hearsay evidence rules and the Confrontation Clause of the Constitution.

There are serious legal complexities involved in cases where the alleged victim wants to dismiss an assault charge or does not want to testify at trial. The alleged victim may consider hiring independent counsel for representation to avoid any communications with the prosecution and determine if taking the Fifth Amendment (right to remain silent) is a viable way to proceed and for answers to these questions:

  • Will the alleged victim be held in contempt of court and face jail upon failure to appear at trial or a hearing to testify?
  • Can the alleged victim be charged with a crime for changing the story about what happened?
  • Can charges be filed against a person that tells the alleged victim not to appear at court (witness tampering or intimidation)?

It takes the skills of an experienced criminal defense lawyer to navigate all of the legal issues that can arise in situations such as this.  After the arraignment, a pretrial conference will be held for a misdemeanor or a probable cause conference will be held for a felony. It is at these proceedings where most domestic violence cases are resolved, the charges are lowered or dismissed, and we can get our clients out of the broken court system. 

Assault and Domestic Violence Strategies: Avoiding Conviction, Jail, Record

A person charged with an domestic violence or any assault related crime has many concerns including:

  • Can a conviction be avoided?
  • Can jail be avoided?
  • Can a felony conviction be avoided?
  • Can a no-contact order be lifted?
  • Can probation be modified, terminated, reduced?
  • Can alcohol or drug testing be avoided?

There are several factors that can influence the outcome of an assault charge, including:

  • Prior criminal record of the accused.
  • Any injuries to the alleged victim.
  • Prior assaultive history of the alleged victim.
  • Whether the accused acted in self-defense.
  • Whether any drugs or alcohol are involved.
  • Whether the alleged victim will agree to a plea bargain.
  • Whether the alleged victim will testify at the preliminary examination or trial.
  • Whether the alleged victim claims any losses (restitution).
  • Whether the prosecutor has a ‘no plea bargain’ policy.

Getting a Domestic Violence Under Control, Dismissed, Avoiding a Felony Conviction

Getting charged with domestic violence doesn’t mean that you will be convicted of domestic violence. There are a number of options to get a domestic violence under control. In defending clients charged with an assault crime, there are various outcomes that we have obtained to avert a conviction or felony record which include the following:

Youthful Offenders – HYTA: Getting the case dismissed for offenders age 18 to 25 pursuant to HYTA.

MCL 769.4a – Deferral: Getting a domestic violence case deferred (period of probation) and dismssed at the end of the deferral period.

Self- Defense: Arguing self defense during negotiations or at trial to fight for a dismissal or lesser charges.

Victim Will Not Testify: When the victim will not testify, the defense attorney will ask the judge to dismiss the case on various grounds.

Getting a felony reduced to a misdemeanor: When the prosecutor has a strong case and the victim is not willing to dismiss the charges, avoiding a felony conviction can be the best course of action.

Please browse our webpages and blogs that are dedicated to the topics of assault crimes:

Public Policy Reasons Make it Difficult to Get Domestic Violence Cases Dismissed

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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macomb_county_district_courts_map

Romeo: 42nd District Court Division 1

Above, is a map of Macomb County with a geographical breakdown of the 9 district court borders. The 42nd District Court-Division 1 is located in the City of Romeo. It is often referred to as the Romeo Court. The court has jurisdiction over a greater area of land than any other district court in Macomb County and serves the following northern Macomb County communities: Romeo, Washington Township, Armada Village, Armada Township, Richmond, Richmond Township, Memphis (south of Boardman Rd), Ray Township and Bruce Township.

New Baltimore: 42nd District Court Division 2

The 42ndDistrict Court Division 2 is located in the City of New Baltimore and it serves the communities of New Baltimore, Chesterfield Township, Village of New Haven and the Lenox Township.

Traffic and Criminal Caseload of the 42nd District Courts

The 42-1 District Court, which is the one located in Romeo, and the 42-2 District Court, located in New Balimore, have jurisdiction over civil disputes not exceeding $25,000.00, and the following other legal proceedings:

Arraignments: All misdemeanor and felony arraignments occur at the district court level. Arraignment is the first stage of a criminal case following authorization of a criminal charge.

Misdemeanors: The district courts have complete jurisdiction over misdemeanors. Misdemeanors are crimes punishable by up to one year in the county jail and/or fines up to $1,000.00.

Felonies: All felony cases begin in the district court for arraignment, probable cause conference and preliminary examination. Felony proceedings beyond preliminary examination are handled in the higher circuit unless resolved in the district court by a reduction to a misdemeanor.

Traffic: The district courts have complete jurisdiction over traffic tickets. Getting a lawyer to fight a traffic ticket to avoid points and higher insurance premiums is a wise investment.

Drunk driving, domestic violence and retail fraud are some of the most prevalent cases on the criminal dockets at the 42-1 District Court and the 42-2 District Court. Judge William Hackel presides over the 42-2 District and Judge Andary presides over the the 42-1 District Court.  Because of our consistently high criminal caseload at these courts, we consider both 42nd District Courts to be “home-town” courts. This ABDO LAW publication will focus on our experience representing clients charged with drunk driving, domestic violence and retail fraud cases at the 42nd District Courts.

Drunk Driving 

Getting nailed for drunk driving can be an ordeal no matter where it happens. However, it does make a big difference if you get a local Macomb County DUI/OWI lawyer that is experienced with the court and the judge assigned to your case.

Nationwide, less than 10% of all drunk driving cases wind up going to trial. This statistic holds true for drunk driving cases that are heard at the 42nd District Courts located in Romeo and New Baltinore, as well as every other district court in the counties of Macomb, Oakland, Wayne and St. Clair. However, I can tell you that if you get an OWI/DUI in the 42-1 District (Romeo Division) or the 42-2 District Court (New Baltimore Division), you are looking at the best-case-scenario. By best-case-scenario I mean that you are looking at getting the charge REDUCED, NO JAIL and NOT LOSING YOUR LICENSE. This is true for the drunk driving cases that we have handled for FIRST TIME OFFENDERS in the 42-1 and 42-2 District Courts from 2020-2021 where we were able to get every OWI and High BAC (.17 or more) dropped down to a lower charge with NO JAIL.  There are a few differences in the way things are done in the sister courts located in Romeo and New Baltimore. The Romeo Court is more likely to require supervised probation and alcohol testing for first offenders than New Baltimore. However, Romeo’s Judge Andary will consider early termination of probation and modification of random testing for individuals that are have been compliant.

The following are your most common options if you are charged with drunk driving

  1. Hire an attorney to negotiate the best possible plea bargain and advocate for a minimal sentence. Note: even felony drunk driving third offense can potentially be reduced to a misdemeanor!
  2. File motions to seek dismissal or reduction in the charge(s) based upon:  lack of evidence of intoxication or impairment, mistakes as to testing protocol, illegal traffic stop, lack of evidence to support the element that vehicle was “operated” by the defendant.
  3. Conducting a trial before the judge or a jury.

As I mentioned, more than 90% if OWI/DUI are resolved when an attorney can negotiate a favorable outcome that is far better than risking a guilty verdict to the higher original charges at trial. Because a local Romeo or New Baltimore drunk driving attorney knows the local polices, politics and procedures, you should never plead guilty as charged without getting sound legal advice. Watch your ass if you are getting your legal advice from the cop that arrested you and said that you don’t need a lawyer. You should also know that the court personnel are forbidden to give legal advice by every district court in Macomb County.

Link: extensive coverage of DUI/OWI cases in Macomb County.

Shoplifting-Retail Fraud

The terminology given by the Michigan Penal Code for the crime of shoplifting is “retail fraud.” Intentionally changing price tags, concealing merchandise and failing to scan merchandise are all forms of retail fraud. The offense of retail fraud may be charged as a misdemeanor or a felony. In Michigan, a misdemeanor is defined as an offense that is punishable by not more than 1 year in the county jail while a felony is a criminal offense punishable by more than 1 year – up to life in prison. The dollar amount of underlying theft and/or the prior retail fraud criminal record of the offender are the determining factors as to whether a person is charged with a misdemeanor or felony. The penalties for retail fraud are as follows:

First degree retail fraud: Theft of property of $1,000.00 or more constitutes retail fraud in the first degree, which is a felony under Michigan law, and carries up to 5 years in prison, or a fine of not more than $10,000.00 or 3 times the value of property stolen.

Second degree retail fraud: Theft of property of $200.00 up to $1,000.00 constitutes retail fraud in the second degree and carries up to 1 year in county jail, up to $2,000.00 fine or 3 times the value of property stolen.

Third degree retail fraud: Theft of property under $200.00 constitutes retail fraud in the third degree and carries up to 93 days in jail, up to $500.00 fine or 3 times the value of property stolen.

Judge Jennifer Andary and Judge William Hackel will go out of their way to give someone a second chance. Normally, almost every misdemeanor, including retail fraud, can be favorably resolved in the 42-1 District and the 42-2 District.  To be specific, both courts will take a retail fraud under advisement or set a deferral period. Upon successful completion of the deferral period the case is DISMISSED. During the deferral period, the offender is required to comply with any of the following conditions ordered by the court:

  • Attend appropriate program ranging from a 1-day class to a long-term substance abusecounseling program.
  • Possible drug/alcohol testing.
  • No contact with the retail establishment where the offense occurred.
  • Payment of combined fines and costs approximately $1,000.00.
  • Possible community service.

If you are charged with a felony, ask a local Macomb County criminal defense lawyer how it is possible to get it reduced to a misdemeanor, avoid jail and avoid a felony record.

Link: extensive coverage of retail fraud cases in Macomb County

Domestic Violence and Assault

The crimes of domestic violence and assault & battery are found in MCL 750.81. 

Most of those that we represent for domestic violence or assault have never been in trouble with the law and are looking for a way to get out of the system Scott-Free without a domestic violence conviction. An outright dismissal of a domestic violence or assault crime in Macomb County is possible when the victim does not want to prosecute. This is not as easy as it sounds and the services of an experienced local Macomb County criminal defense attorney can make a huge difference between getting a case dismissed and winding up with a big fat legal mess.  A local Macomb County domestic violence lawyer will formulate an individualized strategy to deal with the following potential problems that may arise:

  • How the victim should respond to the prosecutor and victim’s rights advocate.
  • Whether the victim will be held in contempt of court for failing to appear for a court date or trial.
  • How to deal with the prosecutor that intends to use the police report and witness statements when the victim does not cooperate.
  • How to avoid getting hit with witness tampering and/or obstruction of justice accusations.

Big 3 Options if you are charged with Assault or Domestic Violence: There are 3 options in the criminal justice system for a person charged with an assault crime or domestic violence which are as follows: 

  1. Seeking a dismissal when the victim adamantly does not want to testify or appear against the accused party.
  2. Pleading pursuant to MCL 760.4a which will result in a dismissal after a term of probation.
  3. Conducting a trial before the judge or a jury.

Link: extensive coverage of assault and domestic violence cases in Macomb County

 

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