Articles Posted in Assault Crime

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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

Continue reading ›

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 “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

Continue reading ›

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ABDO LAW has several publications dedicated to “frequently asked criminal law questions and topics”. This publication is committed to the topic of  pretrial conferences and probable cause conferences in Macomb County District Courts. The signficance of pretrial conferences and probable cause cannot be ignored. The vast majority of criminal cases are resolved by a plea bargain during these stages of the criminal process. According to the Bureau of Justice Statistics, about 95 percent of criminal cases in the state and federal system are disposed of through the process of plea bargain.

What is a pretrial conference? A probable cause conference?

Pretrial conferences are scheduled in both criminal and civil cases. For criminal misdemeanor cases, a pretrial conference is a meeting that is scheduled by the court and attended by the defendant’s attorney and the prosecuting attorney.   The major purposes of a pretrial conference and probable cause conference is to facilitate resolution of a case, management of a case for trial or management of a case regarding other housekeeping matters (listed below).  Generally, the Judge and witnesses are not directly involved in the conference process. However, the victim will be advised regarding the outcome of a pretrial conference and most prosecuting attorneys require the consent of the victim to any plea bargain to reduce or amend criminal charges. In addition to negotiations and plea bargaining, there may be pretrial hearings on the validity of confessions, searches, identification, etc. Other matters covered at the pretrial conference include motions and requests to determine whether evidence will be admitted or suppressed at trial. In truth, most judges hate trials and will encourage the litigants to strive for case resolution. If a case is not resolved, the court may schedule additional pretrial conferences to give the parties an opportunity to fully explore the possibility of plea bargaining. Getting a criminal charge dismissed is also a possible pretrial conference result. 

In criminal matters, a pretrial conference is scheduled for every misdemeanor and a probable cause conference is scheduled or all felony cases soon after a case is filed with the court and a case number is assigned.  In Macomb County, criminal pretrial conferences and probable cause conferences are held soon after the arraignment. Depending on the policy of each court, the pretrial conference will either be held remotely (ZOOM) or LIVE at the district court location  (links to Macomb County District Courts). Conferences for felony matters may occur on the date scheduled for the probable cause conference and the  preliminary examination,

The direction of a criminal case is often determined after a pretrial conference. Pretrial conferences are a vital tool, which a skilled criminal defense lawyer will utilize for several reasons:

  • Promote dismissal of the charge(s) under certain circumstances
  • Negotiate a favorable plea bargain
  • Use a probable cause conference to negotiate reduction of a felony to a misdemeanor
  • Address bond, bond conditions and/or release from jail
  • Adjourn the pretrial conference to seek a deviation when strict policy obstructs a plea bargain
  • Request modification of no-contact order (domestic violence cases)
  • Negotiate restitution when financial losses are claimed
  • Obtain the input of the presiding judge regarding a technical matter or a special request such as a specific sentence.
  • Size up the prosecution’s case, witnesses and evidence
  • Request copies of discovery (police reports, videos, chemical test results)
  • Schedule one or more motion dates to attack the evidence, or to weaken the case
  • Set future pretrial conference date to promote resolution of a case
  • Schedule the case for a bench or jury trial

Factoid: A person who is accused of a crime is not considered a “defendant” until that person is formally charged with a crime. Our criminal defense lawyers never refer to our clients as “defendants” when speaking to the court or prosecutor because of negative connotations. We prefer to refer to our clients by their given name or “the accused”.

What is the attorney’s role at a pretrial conference?

The best way for me to summarize an attorney’s role at a pretrial conference is by mentioning a few passages from the Michigan Rules of Professional Conduct. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

  • As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.
  • As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

What is the defendant’s role at the pretrial conference?

Unless otherwise excused, attending the pretrial conference is mandatory at all courts located in the counties of Macomb, Oakland, Wayne and St.Clair. Prior to the pretrial conference, the criminal defense attorney works together with the defendant to set goals and/or lay out solid strategies which will lead to productive negotiations. At the conclusion of a pretrial conference, the defendant will be advised of the results which may lead to final resolution of the case. The consent of the victim may also be required before the prosecuting attorney can offer a plea bargain. If the client accepts the negotiated result and the victim does not object, the defense attorney and the defendant will appear before the judge to spell out the terms of the plea bargain on the court’s record. If necessary, the pretrial conference may be adjourned to further work up a case or to explain the outcome of a pretrial conference in greater detail to the defendant outside of formal court proceedings. Most courts are willing to grant additional pretrial conference dates at the request of either the defendant’s attorney or the prosecuting attorney.

Pretrial Conference: Now Scheduled Live or Remote

Prior to the pandemic of 2020, all pretrial conferences were scheduled at the court building where the case was filed.  However, during the pandemic, the courts evolved to allow pretrial conferences to be held remotely via on-line computer platforms such as ZOOM. (click here for ZOOM SUPPORT) Each court has its own policy as to whether a hearing will be scheduled “in person” or “remotely”.

After the pretrial conference, the defendant and his or her attorney will appear in open court and inform the Judge of the results. The Judge has the final say regarding the outcome of a pretrial conference. For example, certain plea bargains may be against the Judge’s own policy and may require some persuasion and legal authority. In addition, the Judge may show frustration when the parties are attempting to adjourn (delay) cases. Since adjournments tend to clog court dockets, the Judge will require that “good cause” be shown.

Our experience is that a pretrial conference is an invaluable opportunity to advocate on behalf of our clients. Advocacy includes elements of assertiveness and diplomacy. We often can achieve a disposition after the pretrial conference. This may result in a plea bargain, which may have the effect of dismissing the criminal charges in exchange for completion of probation. It is our job to protect our client’s rights and seek the best possible outcome, which may mean saving a client from being exposed to egregious facts and the expenses of an unnecessary trial. The defendant remains the ultimate decision-maker when presented with options after the conclusion of a pretrial conference.

How are drunk driving, retail fraud and other prevalent cases resolved at the pretrial conference?

We know that being charged with a crime can be a life changing event.  Based upon our experience, we look for ways to get your life back on track and get you out of the criminal justice system with the best result. In Macomb County, the majority of misdemeanor cases on the docket consist of drunk driving, retail fraud, domestic violence, driving while license suspended, leaving the scene of an accident, and disorderly conduct. Some of the more prevalent felony cases are assault with a dangerous weapon, uttering & publishing, embezzlement, possession of analogues, and carrying a concealed weapon. The following are possible scenarios for these prevalent criminal cases and how they can be favorably resolved during the pretrial conference or probable cause conference stage of a criminal case:

  • Drunk Driving: Seeking a reduction to impaired driving or a non-criminal offense under exceptional circumstances.
  • Super Drunk Driving/.17 or more: Seeking a reduction to impaired driving when a client can demonstrate low likelihood to be a repeat offender.
  • Retail Fraud: A first time offender can expect to get the charge deferred and dismissed after a short period of probation.
  • Domestic Violence: First we try to find out if the victim wants it dismissed and then look for ways to get the case dropped.
  • Driving while License Suspended: Seek reduction of the charge to a lower offense to avoid points and avoid additional license suspension.
  • Leaving the Scene of an Accident: Avoid 6 points associated with this offense, avoid jail, and get the charge reduced.
  • Disorderly Conduct: Obtain a deferral and dismissal after a short period of probation.
  • Felony/Assault with a Dangerous Weapon: Reduce to a misdemeanor unless the victim insists upon dismissal and is not likely to cooperate with the prosecutor.
  • Felony/Uttering & Publishing: U & P is a felony that can carry up to 14 years in prison. Avoiding a felony record and avoiding jail is entirely possible when we can offer payment of full restitution.
  • Felony/Embezzlement: Embezzlement over $1,000.00 is a felony that can carry up to 5 years in prison. Getting a felony record is unacceptable. Payment of full restitution and negotiating reduction to a misdemeanor is a realistic goal.
  • Possession of Analogues: Possession of analogues is a felony. Pursuant to MCL 333.7411, all drug possession crimes can be dismissed and the record sealed when resolved pursuant to MCL 333.7411.
  • Felony/Carrying a Concealed Weapon: CCW can carry up to 5 years in prison. A realistic goal in handling CCW cases is to get the felony reduced to a misdemeanor such as improper transport of a firearm.


Some other important things to know about pretrial conferences

Macomb County Court Links:

37th District Court: Warren & Centerline

38th District Court: Eastpointe

39th District Court: Roseville & Fraser

40th District Court: St. Clair Shores

41A District Court Sterling Heights Division

41A District Court: Shelby-Utica-Macomb Township

41B District Court: Clinton Township-Harrison Township-Mt. Clemens

42-1 District Court: Romeo-Washington Township-Armada-Bruce Township-Ray Township-Richmond-Memphis

42-2 District Court: New Baltimore-Chesterfield Township-Lenox Township-New Haven

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4-RULES-OF-GUN-SAFETY

CPL Eligibility in Michigan

It’s a felony in Michigan to carry a concealed pistol on your person or in a motor vehicle without a CPL. However, if you meet the legal requirements, you are entitled to obtain a license to carry a concealed pistol (CPL). An applicant for a Michigan CPL must:

  1. Be at least 21 years of age.
  2. Be a citizen of the United States or an alien lawfully admitted into the United States.
  3. Be a legal resident of Michigan and reside in Michigan for at least six-months immediately prior to application.  An applicant is a resident of Michigan if one of the following applies: possesses a valid Michigan driver’s license or official personal identification card or is lawfully registered to vote in Michigan.

Note: The county clerk shall waive the six-month residency requirement: for an emergency license, if the applicant is a petitioner for a personal protection order or the county sheriff determines that there is clear and convincing evidence to believe that the safety of the applicant or the safety of a member of the applicant’s family or household is endangered by the applicant’s inability to immediately obtain a license to carry a concealed pistol.

  1. Successfully completing an appropriate pistol safety training course or class.
  2. Not be subject to an order or disposition for any of the following:
  • Involuntary hospitalization or involuntary alternative treatment.
  • Legal incapacitation.
  • Personal protection order.
  • Bond or conditional release prohibiting purchase or possession of a firearm.
  • Finding of not guilty by reason of insanity.
  1. Not be prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under MCL 750.224f.
  2. Have never been convicted of a felony in Michigan or elsewhere, and a felony charge against the applicant is not pending in Michigan or elsewhere at the time he or she applies for a CPL.
  3. Have not been dishonorably discharged from the United States Armed Forces.

Gun rights impacted by misdemeanor and felony convictions

 Pursuant to Michigan and federal law, you cannot own or possess any firearm (pistol or rifle) with any felony conviction. If you are charged with a felony, getting a felony criminal defense lawyer to fight the case is the key to preserving your Second Amendment rights. Misdemeanor convictions are a problem for a person trying to get a CPL. The right to obtain a CPL is denied 3 to 8 years upon conviction of selected misdemeanors.  Misdemeanor representation is crucial if you are charged with a misdemeanor under state law or local ordinance and you value your criminal record and/or CPL rights. There are many ways that a criminal defense lawyer can fight to save your record and gun rights. MCL

-8-year period of denial misdemeanors: A person convicted of any of the following common offenses is required to wait eight (8) years before applying for a CPL:

  • MCL 257.617a, failing to stop when involved in a personal injury accident
  • MCL 257.625, operating while intoxicated punishable as a second offense
  • MCL 257.626, reckless driving
  • MCL 257.904(1), DWLS punishable as a second offense
  • MCL 750.81, assault or domestic assault
  • MCL 750.81a(1) or (2), aggravated assault or aggravated domestic assault
  • MCL 750.115, breaking and entering or entering without breaking
  • MCL 750.136b(7), fourth-degree child abuse
  • MCL 750.226a, sale or possession of a switchblade
  • MCL 750.227c, improper transporting or possessing a loaded firearm in or upon a vehicle
  • MCL 750.232, failure to register the purchase of a firearm or a firearm component
  • MCL 750.232a, improperly obtaining a pistol, making a false statement on an application to purchase a pistol,
  • MCL 750.233, intentionally pointing or aiming a firearm without malice
  • MCL 750.234, discharging a firearm while intentionally aimed without malice
  • MCL 750.234d, possessing a firearm on prohibited premises
  • MCL 750.234e, brandishing a firearm in public
  • MCL 750.234f, possession of a firearm in public by an individual less than 18 years of age
  • MCL 750.235, discharging a firearm pointed or aimed intentionally without malice causing injury
  • MCL 750.237, possessing or discharging a firearm while under the influence
  • MCL 750.237a, weapon-free school zone violation
  • MCL 750.335a, indecent exposure
  • MCL 750.411h, stalking
  • MCL 750.520e, fourth-degree criminal sexual conduct
  • MCL 752.861, careless, reckless, or negligent use of a firearm resulting in injury or death
  • MCL 752.862, careless, reckless, or negligent use of a firearm resulting in property damage
  • MCL 752.863a, reckless discharge of a firearm

-3-year period of denial misdemeanors:  A person convicted of any of the following common offenses is required to wait eight (8) years before applying for a CPL:

  • MCL 257.625, operating while intoxicated, visibly impaired, under 21 years of age with any bodily alcohol content, or with any presence of a Schedule 1 controlled substance or cocaine
  • MCL 257.625a, refusal of commercial motor vehicle operator to submit to a preliminary chemical breath test
  • MCL 257.625k, ignition interlock device reporting violation
  • MCL 257.625l, circumventing or tampering with an ignition interlocking device
  • MCL 333.7401 to 333.7461, controlled substance violation
  • MCL 750.167, disorderly person
  • MCL 750.174, embezzlement
  • MCL 750.218, false pretenses with intent to defraud or cheat
  • MCL 750.356, larceny
  • MCL 750.356d, retail fraud second or third degree
  • MCL 750.359, larceny from vacant structure or building
  • MCL 750.362, larceny by conversion
  • MCL 750.362a, refuse or neglect to return vehicle, trailer, or other tangible property delivered on a rental or lease basis with intent to defraud the lessor
  • MCL 750.377a, malicious destruction of personal property
  • MCL 750.380, malicious destruction of real property
  • MCL 750.535, receiving, possessing or concealing stolen, embezzled, or converted property
  • MCL 750.540e, malicious use of service provided by telecommunications service provider

Additional misdemeanors that will result in CPL denial periods are listed at MCL 28.425b.

Pistol Free Zones

Pursuant to  MCL 28.425o, it is illegal for a person with a CPL to carry a pistol at the following places:

  • School property except while dropping off or picking up a student.
  • Day care center, child caring agency, or public or private child placing agency,
  • Sports arena or stadium,
    A tavern where the primary source of income is the sale of alcoholic liquor by the glass consumed on the premises,
  • Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official allows concealed weapons.
  • An entertainment facility that has a seating capacity of 2,500 or more,
  • Hospital,
  • Dormitory or classroom of a community college, college, or university,
  • Casino

Furthermore, per Administrative Order 2001-1 of the Michigan Supreme Court:

  • “Weapons are not permitted in any courtroom, office, or other space used for official court business or by judicial employees unless the chief judge or other person designated by the chief judge has given prior approval consistent with the court’s written policy.”

The following penalties may also be imposed for carrying a concealed weapon in a pistol free zone:

  • First offense:  State Civil Infraction, $500 fine, CPL permit suspended 6 months
  • Second offense:  90-day misdemeanor, $1000 fine, CPL permit revoked
  • Third and subsequent offenses:  4-year felony, $5000 fine, CPL permit revoked

Declaring your CPL when confronted or pulled over by the police

Pursuant to MCL 28.425f, an individual that is licensed to carry a concealed weapon shall carry his or her CPL and state issued driver license or personal identification card while carrying a concealed weapon. Upon being confronted (pulled over, etc.), the individual carrying a concealed pistol shall show both pieces of identification to the peace officer and IMMEDIATELY disclose that he or she is carrying a concealed pistol on his or her person or in his or her vehicle.  The penalty for lack of identification is a state civil infraction. The penalty for failing to immediately disclose (carrying a firearm) is civil infraction subject to the following:

  • For a first offense, by a fine of $500.00 and by the individual’s license to carry a concealed pistol being suspended for 6 months.
  • For a subsequent offense within 3 years of a prior offense, by a fine of $1,000.00 and by the individual’s license to carry a concealed pistol being revoked.

Brandishing a firearm

CPL holders need to know that a firearm should not be produced unless absolutely necessary and in justifiable self-defense. Brandishing a firearm is a crime that involves production of a firearm for the purpose of intimidation but does not amount to aiming or an assault crime. MCL 750.234e, provides that a person shall not willfully and knowingly brandish a firearm in public, subject to the following exceptions:

  • A peace officer lawfully performing his or her duties as a peace officer.
  • A person lawfully acting in self-defense or defense of another under the self-defense act.

The federal definition of brandishing is as follows:  to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

Brandishing a firearm is a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both. In addition, a person convicted of brandishing will be denied the right to apply for a CPL for 8 years.

It is a good practice to be a private person about your firearms and your CPL. Don’t flaunt your firearm or show off.  Once a person knows that you have a firearm, it is very easy to be accused of brandishing or some other crime that can jeopardize your record and your rights. Unfortunately, fighting a lie or proving a negative is not the easiest thing to do.

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Michigan citizens are serious about their Second Amendment firearm gun rights

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

Michigan Firearm Carry Laws

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

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

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

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

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

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

Transporting a Firearm in a Motor Vehicle

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

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

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

Macomb County & Metro Detroit: Record gun sales in 2020

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

Felony conviction precludes possession or ownership of a firearm

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

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

Other Common Crimes Involving Firearms

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

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

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

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

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

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

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

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

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

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George-Floyd
Imaginary lines in space decide many of the rights and obligations of American life. These boundary lines have tremendous effects on our sense of self and to whom we feel connected. Far more than just emotional and psychological consequences flow from where we live and how we identify. (Read Democratic Education and Local School Governance.) In America, geography and identity determine one’s legal power and opportunity.

3 recently recorded incidents of unarmed black men being ridiculed or killed in America have surfaced online and sent communities across both coasts pleading for justice.  The unfortunate stories of Ahmaud Arbery, Christian Cooper, and George Floyd during COVID provides powerful tools for Americans to reflect on our interconnectedness with fellow Americans from different backgrounds and geography.

The United States of America, a democracy founded on the equal dignity of every citizen[1]  rejects an ancient view that legal power and opportunity hinges upon accidents like parentage or geography. This is due to the fact that deeply rooted in American heritage and values is our core belief in the American Dream, a happy way of living that can be achieved by anyone in the U.S. by working hard.[2]

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What you can expect if you are involved in a criminal, drunk driving or traffic matter in the Cities of Warren & Centerline

Our publications explore criminal and drunk driving issues within the realm of our law firm’s expertise. We have the distinction of practicing criminal law longer than most other Macomb County lawyers. This publication is about the 37th District Court where we regularly provide legal services to our clients charged with criminal matters, (misdemeanors and felonies), drug crimes, drunk driving and traffic tickets.

Locations of the 37th District Court 

The 37th District Court has two locations which are located in the cities of Centerline and Warren. The jurisdictional boundaries of these Courts cover 36 square miles (from 8 Mile Road to 14 Mile Road and from Hayes to Dequindre). The Centerline and Warren Police Departments, as well as the Michigan State Police, patrol the streets and major roads within the boundaries of the 37th District Court; including I-696, Dequinder, Ryan, Van Dyke, Schoenherr, Hayes and 8 Mile).  The City of Warren is also home to many industrial centers, the General Motors Tech Center, automobile dealers,  restaurants, bars and retail establishments.

  • Warren Location: 8300 Common Road, Warren, MI 48093, Phone: 586-574-4910
  • Centerline Location: 7070 E. Ten Mile Road, Centerline, MI 48015, Phone: 586-757-8333

The Warren Police Department (WPD) is located directly behind the 37th District Court. The WPD is one of the most active law enforcement agencies in Macomb County with impressive detective bureau, helicopter unit, motorcycle and traffic patrol squad. The detective bureau has a drug enforcement team, as well as other units, which engage in various undercover operations.  The drug enforcement unit keeps close tabs on its 8 Mile Border and regularly arrests individuals that are caught returning to Warren after buying drugs (heroin) in the City of Detroit.  The Michigan State Police also have a presence in Warren as the law enforcement entity responsible for patrolling I-696 expressway.

Dismissals of criminal cases in the 37th District Court!

The 37th District Court has 4 elected judges. Each judge rotates once per month to preside over the Centerline caseload. As experienced criminal defense attorneys in Macomb County, I can say that all of the judges are extremely fair. They are judges that will listen to arguments and fairly dispose of criminal, drunk driving, drug and traffic cases. In my opinion, the 37th District Court is a court with a philosophy of rehabilitation, rather than a direct line to incarceration, and eligible offenders are given a second chance.

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 37th District Court. The following is list of some of the most prevalent cases that we regularly see on the 37th District Court dockets in both Centerline and Warren:

Getting out on bond, bond conditions

The 37th District Court is notorious for setting high bonds on individuals charged with a felony.  It is also a court that gets more drug cases than any other district court within Macomb County and the judges do not hesitate to set high bonds for those charged with minor drug crimes!  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at arraignment by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. Most judges will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise cost.  In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail including the following:

  • Drug and alcohol testing
  • GPS monitoring (sex crimes, violent crimes)
  • A ‘no-contact order‘ (assault, domestic violence, retail fraud)

A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification

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

The outcome of a criminal case in the 37th District Court, as well as other Macomb County District Courts, is dependent upon many circumstances.  The most significant factors that can have an impact on a case are:

  • The prior criminal record of the accused party.
  • Cooperation with the police (no resistance or difficulty at the time of arrest).
  • Whether another party was injured.
  • Whether the accused party can provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children).

In our experience, criminal cases can be resolved favorably at the 37th District Court. Whenever possible, the judges will accept dispositions to allow an offender the opportunity to get a dismissal under these special provisions of law: HYTA for youthful offenders, MCL 333.7411 for first time drug offenders and MCL 769.a for domestic violence. The court will also utilize a provision of law known as a deferral or delayed sentence which allows an offender leniency or a dismissal after a period of probation. Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 37th District Court: 164 DUI cases in 2019

The highways and roads within the jurisdiction of 37th District Court are well traveled. They are used to cross town from the northern suburbs to the City of Detroit and to travel from the east side to the west side. Within its boundaries, there is an abundance of traffic associated with the I-696 expressway, the automotive industry and retail establishments. Heavy traffic volume is the reason that we see so many drunk driving cases within the 37th District Court. In 2019, Warren and Centerline administered a total of 164 breath and blood tests for individuals charged with drunk driving or drugged driving. Over 59 of the test results registered a blood alcohol content of .17 or greater to support a charge of ‘Super DUI‘ or operating with a high BAC (.17 or greater).

Statistically, more than 90% of drunk driving cases do not go to trial and are resolved negotiating and entering into a plea bargain. Plea bargains can mean getting a better deal without spending thousands of dollars on trial. However, there are many aspects of a drunk driving case that must be done according to administrative rules and going to trial is encouraged if the police screwed up and we have a chance of getting a not guilty verdict before a jury.

First Time Drunk Driving:  For most first time drinking and driving offenders, jail is not likely absent some other aggravating circumstances in the 37thDistrict Courts. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain for a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense, not just a Super DUI.

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

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation ONLY if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. Click here for more information on felony procedure.

Drug Crimes in the City of Warren

There are more drug crimes in the City of Warren that wind up in the 37th District Court than in any other court located in Macomb County. In my opinion, many factors contribute to the high number of drug crimes in the City of Warren including an aggressive police department and surveillance of drug activity coming from Detroit.  In fact, there are more crimes consistently reported in the City of Warren for larceny, retail fraud and assaults than in other Macomb County courts. In 2019, there were a total of 8,801 crimes reported in the City of Warren compared to 4,660 reported in the neighboring City of Sterling Heights. Both cities are approximately 36 square miles each.

More than ever, our clients are benefiting from aggressive legal representation to avoid felony convictions for drug crimes. In addition, the courts are more willing to utilize therapeutic rehabilitative measures, rather than punitive measures, as a means to sentence drug users.

37th District Court Probation Department: 8300 Common Road, Warren, Michigan 48093

The 37th District Court  has its own probation department which is located in the Court building at 8300 Common Road, Warren, Michigan. Both Centerline and Warren use the probation department at this address. It is within the judge’s discretion whether or not to place an individual on probation after being convicted of a crime or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting.  For obvious reasons, no probation or non-reporting is preferable.  The probation department utilizes on-line reporting. When allowed to report on-line, the probationer is not required to personally appear at the probation department to report unless otherwise instructed to do so. The maximum period of probation that can be imposed in the 37th District Court is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most misdemeanor offenses.

Traffic Violations in the 37th District Court: Avoid Points & Record of any Conviction!

The Warren Police, Centerline Police and Michigan State Police all have an active presence monitoring the activity of vehicular traffic with the jurisdiction of the 37th District Court.  I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 37th District Court. When resolving a traffic matter in the 37th District Court, we are often able to get a reduction or avoid points. A traffic ticket can be reduced to a Michigan civil infraction known as impeding traffic or double parking which are offenses that will never appear on a person’s driving record and do not carry any points.

Court personnel are forbidden by law to give legal advice. Yet courts are making it easier than ever to just pay your traffic ticket by visiting the court’s website and conveniently providing an option to pay by credit card.  Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

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The city of St. Clair Shores, in Macomb County,  is nestled between Lake St. Clair along its entire easterly border and I-94 running alongside its western border.  The 40th District Court has jurisdiction over legal matters that arise in the City of St. Clair Shores that include the following:

The 40th District Court is located on the corner of 11 Mile Road and Jefferson: 27701 Jefferson, St. Clair Shores, Michigan 48081, Phone: 586-445-5280. Honorable Mark A. Fratarcangeli and Honorable Joseph Craigen Oster presiding.

St. Clair Shores: Nautical Mile, I-94, I-696

St. Clair Shores is best known for its several miles of coastline on Lake St. Clair. The lake is a big draw for recreation and for many that choose to live in St. Clair Shores. The area has a reputation for its charm and being a safe place to live. St. Clair Shores is the hometown of ABDO LAW partner, Cy M. Abdo.

Most of the recreational activity and action in St. Clair Shores takes place in a dedicated zone known as the Nautical Mile. The Nautical Mile in St. Clair Shores, located on Jefferson from 9 Mile Road to 10 Mile Road,  is a Michigan landmark which consists of numerous restaurants, bars, marinas and boat dealers along a one mile stretch of land on the shoreline of Lake St. Clair.

The City of St. Clair Shores has its own police department and the Michigan State Police patrol the I-94 and I-696 interstate expressways.

Criminal Cases in the 40th District Courts: Provisions of Law to Get Dismissals Available!

In 2019, 3116 crimes were reported in the entire city of St. Clair Shores. The following is a list of the most prevalent crimes reported in St. Clair Shores as well as most other Macomb County cities and townships:

 The 40th District Court keeps close tabs on the community to insure safe streets and recreational enjoyment. I would say that both judges take a ‘hands on’ approach to their cases. They use alcohol and drug testing extensively to monitor individuals that are on bond or convicted of an alcohol or drug related offense. Jail is rare for first time offenders. However, you will always want the benefit of an experienced 40th District Court criminal defense lawyer to get the best possible result .

Arraignment and Bond: If you are arrested or arraigned on a criminal matter in the 40th District Court, you will appear either before a magistrate or judge.  If you receive a misdemeanor ticket, your attorney may waive the arraignment and have the matter scheduled for a pretrial conference at a later date. If you have a warrant for your arrest or are otherwise required to personally appear for arraignment, the presence of an experienced St. Clair Shores criminal defense lawyer can a big difference at an arraignment to keep the bond low and keep the bond conditions at a minimum. I have found that Judge Oster, Judge Fratarcangeli and the magistrate will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise cost.  However, even though you are presumed innocent, the 40th District Court will require alcohol and/or drug testing as a condition of bond upon being arraigned and during the pendency of the case.

No-Contact Orders: The 40th District Court will also impose a no-contact order in every case involving domestic violence. When a no-contact order is imposed, it restricts an individual’s right to contact or communicate with the alleged victim, even if they are married. If you find yourself in this position, a skilled domestic violence defense lawyer can file a motion to remove the no-contact order. Violating any bond condition is no joke and can result in jail time while the underlying case is pending.

Alcohol/Drug Testing: Those facing alcohol or drug charges in the 40th District Court will almost automatically be required to engage in testing for alcohol and/or drugs soon after a case enters the court system. Testing will also be imposed on those charged with offenses that involve alcohol or drugs such as disorderly conduct or domestic violence. Urine testing is the preferred means to test for drugs. For alcohol testing, the 40th District Court will consider one of the following:

  • Random breath tests
  • Ankle (SCRAM) continuous monitoring system
  • Soberlink (handheld device connected to cellular service or Wifi)

Once a person is required to be tested for alcohol and/or drugs, the 40th District Court Probation Department will be quick to set up a show cause or violation hearing if a person misses a prompt to provide a breath or urine sample or there are any positive results for any alcohol or drugs. We have represented clients that have faced show cause violations because of alcohol or drug use. A testing violation can also occur where the offender denies any alcohol or drug use and claims that the result was a “false positive”. These situations can usually be resolved with the court when the offender has an action plan to avoid further violations or can show the court that there has not been any use of alcohol or drugs.

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

The outcome of a criminal case in the 40th District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

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

In our experience, criminal cases can be resolved favorably at the 40th District Court. All these special provisions of law are possible in the 40th District Court which can result in a dismissal of a criminal matter:

Drunk Driving Cases in the 40th District Court

In 2019, there were approximately 164 arrests for operating a motor vehicle under the influence of drugs or alcohol in St. Clair Shores.  Out of this number, 60 individuals registered a blood alcohol content (BAC) of .17 or greater and faced  “super drunk driving” or OWI with a High BAC. In 2016, there were about one-third fewer individuals facing “super drunk driving” in St. Clair Shores with only 42 offenders testing with a BAC of .17 or more.

1st offense drinking and driving:  A person without any prior DUI/OWI offenses can expect to get through the court process by getting a plea deal to a reduced charge, with no jail and no loss of license.  In practice, the majority of first time arrests for  OWI (.08 to .16) can be negotiated to a reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain for a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense, not just a Super DUI.

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

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation ONLY if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. Click here for more information on felony procedure.

The 40th District Court Probation Department: 27701 Jefferson, St. Clair Shores, Michigan 48081

The 40th District Court has its own probation department located inside of the courthouse.

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

Traffic Violations in the 40th District Court: Reduced to Avoid Points and Record of any Conviction!

94-696

Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 40th District Court. The presence of I-94 and I-696 contribute to the traffic volume in St. Clair Shores.  When resolving a traffic matter in the 40th District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. 

Courts are making it easier than ever to just pay your traffic ticket by visiting the court’s website and conveniently providing an option to pay by credit card.  Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

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Consequences of a felony conviction

Being accused or charged with any crime, misdemeanor or felony, is a serious matter requiring the expertise of a criminal defense lawyer. A felony is defined as an offense that can carry more than 1 year in jail up to life in prison. If the offense carries 1 year or less in jail, it is classified as a misdemeanor.  In addition to the possibility of jail/imprisonment, felonies have greater sentencing consequences in the court system and negative ramifications outside of the court system including:

  • A felony can carry imprisonment up to life.
  • The court can impose up to five (5) years probation for a felony and a maximum of two (2) years for a misdemeanor.
  • Sex Offender Registration (SORA) is required upon conviction for most sex crime felonies.
  • Travel into Canada is forbidden for a person convicted of a felony.
  • A person convicted of a felony cannot own or possess a firearm.

 

 

While researching cases, we came across an  article written by the Michigan Bar Association regarding the Top 50 Felonies Most Frequently Charged in Michigan in the State of Michigan. This list of cases also is consistent with the caseload that our Macomb County criminal defense lawyers see on the dockets of courts located in Macomb, Oakland, Wayne and St. Clair counties.

With more than 40 years experience specializing in criminal defense, I can say that the majority of our clients facing felony charges have never committed a prior felony and the underlying conduct supporting the felony charge does not involve egregious misbehavior.  Nonetheless, a felony charge is possible even for offenses involving simple possession or when a theft involves property valued greater than $1,000.00.

Top Felonies in the Metro-Detroit Courts

Pursuant to the Michigan Sentencing Guidelines, felonies are broken down into categories that determine the accompanying sentence. Punishment for each class is listed below:

  • Class A – Life imprisonment
  • Class B – Up to 20 years in prison
  • Class C – Up to 15 years in prison
  • Class D – Up to 10 years in prison
  • Class E – Up to 5 years in prison
  • Class F – Up to 4 years in prison
  • Class G – Up to 2 years in prison
  • Class H – Jail or other intermediate sanctions, such as fines

 

Below is a list of the most prevalent felony crimes that we routinely handle in the Metro-Detroit courts and that also that fall within the top 50 felonies in Michigan.

Crime Statistics for Macomb County

The Michigan State Police maintains annual crime reporting statistics for each county in the State of Michigan. For 2017, approximately 50,000 crimes were reported in Macomb County. As criminal defense attorneys in Macomb County, these statistics are meaningful in various ways. The economy, social influences (“me too”), crime waves and police practices are all factors that can have a bearing on crime reporting. Statistics indicate that all larcenies constitute the largest number of crimes reported. Nearly 10,000 larceny related crimes reported which include the following:

  • Larceny from a building
  • Larceny from a motor vehicle
  • Larceny misdemeanors (under $1,000) and Larceny felonies (over $1,000)
  • Theft of motor vehicle parts and accessories

Retail fraud (shoplifting) offenses are not included in the above statistic. Separately, approximately 2,500 retail fraud cases were reported in Macomb County for 2017. Retail fraud is classified as a misdemeanor when the amount involved is under $1,000 and a felony if the amount involved is $1,000 or more. The cities in Macomb County that reported the highest number of retail fraud for 2017 were: Roseville (536), Warren (463), Sterling Heights (425), Chesterfield Township (265)  and Clinton Township (209). The numbers for these cities are not surprising considering that these areas all have large retail centers and stores (Target, Meijer, Kohl’s, Costco, Sam’s, Walmart) within their jurisdiction.

Drug Residue or $1.00 more than $999.00 May Lead to a Felony Charge!

DRUG CRIMES: Simple possession of drugs tops the list of felony crimes in Michigan. The drug crime of possession of marijuana is classified as a misdemeanor.  As I have stated, a felony charge may be lodged for unintended behavior. For example, a person may be charged with felony possession of drugs when a police search reveals a minuscule quantity of drug residue. Felony charges can be prosecuted even though the drug residue is unusable, un-measurable and is scraped from a pipe or from the carpet of a vehicle. In researching this matter, I found that the prosecutor in Harris County, Texas has a adopted a policy to avoid prosecuting those found with drug residue. While this is a step in the right direction, Michigan has not adopted this policy. In addition to residue cases, drug charges may be brought against an innocent passenger of a motor vehicle because drugs are found in a compartment or area of the vehicle within reach, possession or view of the passenger(s).

THEFT & PROPERTY CRIMES: Several other felony crimes fall within the theft offense, or property crime category, including retail fraud, embezzlement, credit card fraud, uttering and publishing. A crime can be elevated from a misdemeanor to a felony without any intent or deliberation to wind up in that position. For example, if a theft related offense (embezzlement, retail fraud 1st degree) involves a claim of loss of $1,000.00 or more, the prosecutor will bring a felony charge. If the amount of loss is $999.00 or less, it is a misdemeanor. The danger and concern that exists is when the alleged victim makes a claim that is greater than the actual loss. Not all property crimes are dependent upon the property value. Crimes such as uttering and publishing, credit card fraud, larceny in a building, larceny from a motor vehicle constitute felonies without regard to the value of property misappropriated. Michigan State Police statistics for 2017 indicate that more than 7,000 crimes relating to larceny were reported in Macomb County.

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NOT GUILTY BY REASON OF SELF-DEFENSE!

Oftentimes clients call confused as to why they are being charged with domestic violence or an assault crime (assault and battery, aggravated assault, assault by strangulation, assault with a deadly weapon ) when they believe that they were acting in self-defense. A police response occurs following a report or 911 call. Once at the scene of the alleged crime, the police may take statements from one or more individuals. In most cases, it only takes the statement of a single person and no other witnesses for the police to initiate an arrest of a suspect. The police often do not take the statement of the accused party and do not always conduct a thorough investigation. In addition, the accused may have acted in self-defense which is something that the police may not fully cover in their investigation.

According to Michigan State Police statistics, there were 107,000 incidents of misdemeanor and felony assault crimes reported in 2017!

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