Criminal Law

Plea Bargaining Criminal and Drunk Driving Cases

February 1, 2011 | Abdo Law Firm

The vast majority of Michigan criminal cases, as well as Macomb County criminal and drunk driving cases, are handled by plea bargains.

1. What is a Plea Bargain?

A plea bargain in a Michigan criminal case is a “deal” made with a prosecutor and defendant’s attorney. The defendant’s attorney is skilled to seek the best bargain or agreement to a lesser offense or to receive a less severe punishment. In exchange, the defendant will plead guilty pursuant to the agreement and give up his or her right to a jury trial to defend himself against the original crime charged. For example, most first offense Michian Drunk Driving cases (OWI) can be plead down to Operating While Visibly Impaired (OWVI). This plea bargain is quite common and the vast majority of first offense drunk driving cases are resolved in this fashion.

Dealing With the Probation Department Prior to Sentencing In Michigan Criminal Cases

August 15, 2010 | Abdo Law Firm

Your First Contact with the Probation Department

If you are convicted of a a Michigan Criminal offense, your first contact with probation will occur after you are found guilty. In felony cases, the Judge is required to order a presentence report which is prepared by the probation department. In misdemeanor cases, a presentence report is discretionary unless it involves a drinking and driving offense. If you are convicted of a drinking and driving offense in Michigan, substance abuse evaluations are mandatory. When you are referred to the probation department for an investigation, you should remember that the probation officers have a huge caseload and are often unable to hold your hand through the process. Our Clinton Township criminal defense attorneys have found that the best way to deal with the probation officers is to help them help you! I advise my clients to:

Be early for any appointment, dress appropriately.

Michigan Driver License Restorations For Revocations Based Upon Multiple Drinking and Driving Convictions

June 4, 2010 | Abdo Law Firm

In Michigan, there are many circumstances which can result in revocation of driver’s license. A person’s license is subject to mandatory revocation for obtaining 2 drinking and driving convictions within 7 years or 3 drinking and driving convictions within 10 years. A person who is revoked for drinking and driving is known as a habitual offender of Michigan drinking and driving laws. The driver license restoration process is complex and lawyers with experience before the Michigan Driver Appeal and Assessment Division (DAAD) can greatly increase a revoked person’s chances of getting his or her Michigan driver’s license restored.

A first time revocation is for a minimum period of 1 year and a second lifetime revocation is for a minimum period of 5 years. A person whose license is revoked may not operate a vehicle indefinitely until the person is granted driving privileges before the Michigan Driver Appeal and Assessment Division (DAAD) of the Michigan Secretary of State.

Upon eligibility and after waiting the minimum revocation period, a revoked party may begin the process of license restoration. The revoked party, called the petitioner, must prove by clear and convincing evidence that the alcohol or substance abuse problems are under control and likely to remain under control. If a person fails to meet this high standard of proof, the revocation is affirmed and another hearing is allowed after one (1) year. Many times, I have seen documentation which is submitted to the DAAD that actually harms a client’s case and results in a continuation of the revocation. Our Michigan license restoration attorneys have obtained driving privileges for parties with 5 or more drinking and driving cases because we know the process, review the questions and make sure that all documentation submitted to the DAAD will bolster our client’s case.

Statute of Limitations for Crimes in Michigan

May 11, 2010 | Abdo Law Firm

There are different statutes of limitations for misdemeanors, felonies and offenses which can carry life in prison such as murder. The Michigan statute of limitations for criminal misdemeanors is 6 years, Michigan Compiled Laws 767.24. If you are charged within the period of 6 years, there is not a statute of limitations issue. However, if you were not notified, you may have your attorney argue for a dismissal based upon several theories including “due process”. You may also argue for a dismissal if the case was not authorized for a long period of time after it occurred, such as 2 years, based upon due process issues even though the statute of limitations has not expired. This argument is weak and less effective if you failed to appear in court or made yourself unavailable. However, if the case was not authorized within 6 years, your attorney could file a motion to dismiss based upon the statute of limitations. There is no statute of limitations for murder, criminal sexual conduct in the first degree and terrorism and these offenses may be filed at any time. An indictment for kidnapping, extortion, assault with intent to commit murder, attempted murder, manslaughter, or first-degree home invasion may be found and filed within 10 years after the offense is committed.

There is an interesting statute of limitations for identity theft which is as follows: An indictment for identity theft or attempted identity theft may be found and filed as follows:

a. Except as otherwise provided in subdivision (b), an indictment may be found and filed within 6 years after the offense is committed.

Conspiracy and Drug Crimes, Passenger In Drug Dealer’s Vehicle Was Charged With Conspiracy In Macomb County

April 13, 2010 | Abdo Law Firm

Michigan criminal law attorneys know that you can be charged with conspiracy because of your close relationship with another person or persons involved. Conspiracy involves the mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or a legal act by unlawful means. Proof of the overt act in furtherance of the conspiracy is not necessary.

A two-fold specific intent is required for conspiracy; the intent to combine with others and the intent to accomplish unlawful objectives.

Since conspiracy is complete upon formation of the agreement, subsequent withdrawal is not a defense.

Furthermore, a conspiracy does not automatically end when the object of the conspiracy becomes impossible to achieve, even when the conspirators are unaware that the government has intervened and “defeated” the conspiracy’s object. Impossibility does not terminate conspiracy because the essence of the conspiracy is an agreement to commit an unlawful act and such agreements are by themselves dangerous, even where no substantive crime ensues. US v Recio, 537 US 270; 122 SCt 819; 154 LEd2d 744 (2003).

A passenger in a vehicle with a drug dealer or persons that reside with him may be charged as conspirators even though they are not actively involved in criminal activity.

Our law firm represented the girlfriend of a drug dealer in Macomb County. She was a passenger in the vehicle that her boyfriend was driving while he had a large quantity of cocaine. The vehicle was under surveillance and the police observed it stop at various locations in the City of Eastpointe. A traffic stop ensued and the police found a quantity of cocaine under the passenger seat near my client. There was no question in my mind that she was at the wrong place at the wrong time. However, there was enough evidence for the prosecutor to charge her as a co-conspirator (possession with intent to deliver cocaine) under the theory that she assisted him and was acting as a look out person. The case was dismissed after preliminary examination when the prosecutor could not establish a solid conspiracy case.

Search & Seizure: Probable cause is not required when you consent to a search or when illegal property is in plain view

April 5, 2010 | Abdo Law Firm

The Fourth Amendment to the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. In general, a search and seizure of a person or his property requires a search warrant based upon probable cause. The search warrant requirement is intended to avoid random/abusive searches by government officials. However, in Michigan, the police are not required to obtain a search warrant and probable cause is not required for property which is in “plain view” or when a person “consents” to a search. Whenever a search can occur without the element of probable cause, there is room for abuse by law enforcement. Plain view or consent searches can be made when probable cause does not exist and allow the police to avoid delays and formalities with the search warrant process. In addition, ” there are rarely any legal grounds to contest search based upon plain view or consent.

Plain View: Objects which are in plain view of an officer who has a right to be in that position are subject to seizure without a warrant and without probable cause, or his lawful observations may provide grounds for issuance of a search warrant.

Consent Searches: A person who gives a valid consent to a police officer to search his home or vehicle, may be waiving his 4th Amendment rights. The consent must be given voluntarily and courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced.

Our Macomb County criminal defense lawyers have been able to defeat improper searches if the consent was obtained by threats or coercion or if the traffic stop was random or pretextual. Our position in such situations is that if the initial intrusion is invalid; anything that is seized becomes inadmissible under the “fruit of the poisonous tree” doctrine. The prosecuting attorney has the burden to establish the validity of the intrusion and the voluntariness of the consent by direct and positive evidence.

Video: How to Refuse a Police Search
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Possession of Drugs, Guns, Stolen Property & Child Porn; Michigan and Federal Laws Do Not Require Actual Possession

March 25, 2010 | Abdo Law Firm

STOLEN PROP.jpg

All drug crimes require the element of possession. This publication will examine the applicable Michigan laws which pertain to the issue of “possession” as an element of a crime.

Many Michigan criminal laws, especially drug crimes and stolen property laws, contain an element or requirement of “possession”. Possession of child pornography cases invariably involves legal arguments by criminal defense lawyers and prosecutors regarding the issue of possession. In this regard, specialized computer forensics or other technical evidence is used by law enforcement to establish the element of “possession” and by criminal defense attorneys to contest the issue. Michigan laws which make possession in and of itself the crime allows for arrests and convictions without proving the use or sale of a prohibited item.

There are several terms which are used to describe different types of possession such as actual possession, constructive possession, joint possession, or sole possession. Historically, actual possession was required for a criminal possession conviction to stick. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920’s, courts expanded criminal possession to include “constructive possession”.

Possession versus Ownership: Possession is not the same as ownership. The phrase “possession is nine-tenths of the law,” is often used to suggest that someone who possesses property, other than the lawful owner, can face legal consequences.

Actual possession is what most of us think of as possession-that is, having physical custody or control of an object” (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Constructive possession is frequently used as a legal theory in the prosecution of crimes involving drugs, guns and stolen property. Constructive possession, also sometimes called “possession in law,” exists where a person has the ability to control the object even if the person has no physical contact with it. For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. For legal purposes, they are considered to have constructive possession of the contents of the safety deposit box.

Link to Blog: Proving Possession In Drug Crimes
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