Articles Posted in Felony Cases

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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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What does it mean to provide cooperation, snitch or be an informant for the police?

Cooperation, using the little fish to get the big fish, is a major law enforcement tactic utilized everywhere and every day in the United States to gain information that would otherwise be next to impossible to obtain. This practice is also used extensively in the County of Macomb as a means to frustrate illegal drug activity. An offer to cooperate can arise during a criminal investigation or following an arrest or at any stage of a criminal case.

The concept of “cooperation” with the police (also called “snitching” or “acting as an informant”) occurs when the police utilize an individual to obtain information that would otherwise be difficult to discover.  Those asked to provide cooperation are usually in trouble with the law (busted for a drug crime) and are promised consideration in the legal system in return for providing assistance. Assistance is expected to be substantial and typically involves undercover work with narcotics agents or special units. The informant is rarely advised of his or her rights and other options. The informant may later be required to testify as a witness in subsequent court proceedings unless given protection as a confidential informant (CI).

The use of informants by the government has existed for more than a 1,000 years and remains widely used today by the government and the police to:

  • Make other busts, raids, seizures,
  • Support an arrest or search warrant
  • Bolster connections to infiltrate criminal enterprise(s),
  • Flush out targets or bigger fish, and,
  • Make progress in an investigation that is stuck in the mud.

Getting into Something that is Over Your Head

As we explain in this publication, cooperation or snitching, is a tool used by law enforcement officers to combat criminal activity and is most often associated with drug crimes.  Cooperation with the police is seldom ever considered because drug crimes, especially for first offenders, can be resolved with excellent results in most cases without working with the police. In addition, you need the advice of an attorney to explain your legal rights and all of the possible risks associated with cooperation, including the following:

  • Your safety is not assured
  • Your assistance may be declared insufficient by the police
  • Criminal charges may still be pursued against you
  • Cooperation ends when the police say it ends
  • Cooperation may require engaging in bigger drug deals than justified under the circumstances to get a deal in the legal system

Cooperation (snitching) is usually arranged while the accused person is caught red handed while engaged in illegal activity or in police custody for a criminal offense. Unfortunately, the police may use these scenarios as opportunities to take advantage of the situation by threatening prosecution or by persuading the party with incentives to cooperate that include: immediate release from jail and consideration to get all criminal charges dropped. Upon being released from jail, the unwary person will be instructed to contact an undercover officer for further instructions and discouraged from contacting a criminal defense lawyer. An individual that immediately chooses this route is placing his or her trust with the same law enforcement officers that will be testifying for the prosecution should criminal charges later be pursued.

What the Police Won’t Tell You about Cooperation Can Hurt You

The police are not required to give legal advice or explain every other possible option when attempting to engage an individual to become an informant.  The police will not tell you that your case can be worked out without cooperation or that an attorney can fight the case if it is based upon an illegal search. Here are just a few other legal rights that you forego when you agree to cooperate with the police:

In addition to the above, the police won’t tell you that most drug crimes are manageable in the court system with the services of a criminal defense lawyer. Scare tactics are not uncommon as a means to harvest an informant who is lead to believe that there is no hope in the legal system without providing cooperation.  In fact, the majority of offenders are not looking at jail, may be eligible to get a felony reduced to a misdemeanor and have other excellent options to get the charge(s) dismissed pursuant to MCL 333.7411 or HYTA without providing any cooperation whatsoever to the police!

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Federal Plea and Cooperation Agreement:

“If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein.”

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Every element of a crime must be proven beyond a reasonable doubt

Every crime is made up of parts that are called elements. When a person is charged with a crime, the prosecutor is saying that there is sufficient evidence to establish each and every element of the crime beyond a reasonable doubt. The prosecutor does not always get it right.  Many criminal cases result in an acquittal because an essential element of a crime has not been established beyond a reasonable doubt. In this ABDO LAW publication, the element of “possession” is explained in relation to drug crimes.

Illegal possession of drugs may constitute a felony

Possession is a necessary element in drug crimes and property crimes (receiving and concealing stolen property). For a person to found guilty of a drug crime, the prosecutor must establish that a person intentionally and knowingly possessed the illegal drugs in question. Most drug crimes are felonies that carry serious criminal penalties which can include possible jail, substantial fines and driver license suspension:

Drug Crime Maximum Jail Maximum Fine
Possession of MDMA 10 years $2,000.00
Possession of methamphetamine 10 years $2,000.00
Possession of heroin or cocaine 4 years $25,000.00
Possession of analogues 2 years $2,000.00

 

In another article, we explain how drug possession crimes in Michigan (including all Macomb County District Courts) can be dismissed pursuant to MCL 3333.7411.

“Possession” is a necessary element in drug crimes

The term possession has different meanings in the criminal justice system. A person may be charged with possession of drugs if he or she has “actual possession” or “construction possession”. Because the term “possession” has different meanings and the potential for different interpretations, it is often the subject of legal arguments in criminal cases.

Historically, actual possession was required for a conviction of a criminal case with the element of possession. In other words, a person could not be charged with a crime unless he was “caught red handed” with the illegal property. In the 1920s era of liquor prohibition, courts expanded criminal possession to include “constructive possession”.  Constructive possession does not require an individual to have the physical possession of the illegal property.

Possession does not require ownership: Possession is not the same as ownership. Several criminal laws make it a crime to “possess” something that is forbidden or illegal.

Actual possession is what most of us think of as possession, that is, having physical custody or control of an object. 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 (constructive possession). 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 in cases involving drugs, guns and stolen property in Michigan criminal cases. 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.

Michigan Cases: Interpretation of constructive possession

People v Nunez (2000):  In this case, police a large stash of cocaine in a home occupied by several individuals. Although Mr. Nunez didn’t have the cocaine on his person, he was charged and convicted of possession of cocaine. The police arrived at their conclusion by observing the apartment and its contents. Mr. Nunez had a key for the apartment and stayed at the apartment most of the time. His name was also found on bills within the apartment.

People v Meshell (2005):  In this case, police observed a man emerging from a garage in which they later discovered methamphetamine. Upon entering the area, police noticed a strong chemical odor coming from the garage. Mr. Meshell was the only person in the area of the garage and when police ran his record, they discovered past issues with methamphetamine. Because Mr. Meshell had past issues with meth, it was obvious that he knew the smell. He was also the only one in the area at the time police observed him exiting the garage.

People v McKinney (2003): In this case, police entered a home and discovered a large amount of cocaine. Police found crack in drawers containing women’s clothing, and linked the drugs to Ms. McKinney because she was frequently staying at the apartment. By using the drug’s location as evidence, the police were able to successfully charge and convict Ms. McKinney of possession of cocaine.

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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’s clean slate law makes it possible to get a fresh start and wipe out several prior convictions including one offense for drunk driving.

Summary of Michigan’s Clean Slate Law

Michigan’s expungement law has been broadened to allow for more offenses to be expunged on an individual’s criminal record than at any other time in history. MCL 780.621 contains the provisions of Michigan’s expungement law. The following is a summary of this law:

  • Individuals will be able to get up to 2 felonies and 4 misdemeanors automatically cleared. Crimes punishable by more than 10 years in prison, violent crimes, “crimes of dishonesty” such as forgery, human trafficking and other serious crimes that carry a sentence of life in prison, domestic violence, traffic offenses where someone was seriously injured or died, child abuse, sexual assault, and operating while intoxicated aren’t eligible.
  • Allows misdemeanors to be automatically expunged after 3 years, felonies after 7 years, and serious misdemeanors or a single felony to 5 years, shortening the waiting time to apply for expungement.
  • Up to 3 felonies and an unlimited number of misdemeanors may be expunged, but no more than 2 assaultive crimes and no more than 1 felony if it’s punishable by more than 10 years in prison.
  • Allows felonies or misdemeanors from the same 24-hour period — to be treated as one conviction for expungement. Assaultive crimes, crimes involving a dangerous weapon and crimes punishable by 10 or more years in person can’t be included.
  • Effective February 19, 2022, a first and only offense for driving under the influence, impaired or with a High BAC (.17 or more) may be expunged!
  • Allows those with marijuana misdemeanor convictions to apply for expungement if their offenses would have been legal for recreational use if the crime occurred after cannabis was legalized in 2018.
  • Allows a conviction for 4th Degree Criminal Sexual Conduct that occurred before January 12, 2015 to be expunged if the individual has not been convicted of another offense other than 2 minor offenses.
  • Minor offenses are a misdemeanor or ordinance violation with a maximum term of imprisonment of 90 days or less.

The Clean Slate Law makes Michigan a nationwide leader in expungement reform. To date, only Utah, California, Pennsylvania and New Jersey allow low-level offenses to be automatically cleared from records, and Michigan will now be the first to include low-level felonies in the automatic process. For thousands of Michiganders, this is an opportunity for a better life. Michigan’s Clean Slate Law creates a more just, equitable, and inclusive expungement process.

Expungement of Drunk and Impaired Driving

Effective in February 2022, an individual will be able to get 1 lifetime offense for driving under the influence expunged. Eligibility to expunge an OWI won’t come easy. First of all, the individual can have one offense expunged if that individual has only one DUI offense on his or her record. The DUI expungement law will allow for expungement of any 1 of the following offenses:

  • Operating While Intoxicated
  • Operating Under the Influence of Drugs
  • Operating While Impaired
  • Operating with a High BAC .17 or greater
  • Zero tolerance/minor with any BAC

Operating under the influence causing an injury or death are not eligible for expungement. One of the rules for anyone seeking to expunge an DUI will require the applicant to prove that he or she has resolved any underlying alcohol or substance abuse problem. This may require getting a current substance abuse evaluation and other documentation of sobriety.

The Expungement Process in Michigan

Expungement proceedings are complex and doing it yourself can be a daunting undertaking. If you fail to notify required parties (Attorney General, prosecutor, Michigan State Police) or fail to obtain a record clearance , the case will be dismissed. There are several required involved when it comes to getting an expungement. The proceeding for expungement has The DUI expungement Michigan process is very rigorous and time-consuming.

While every case varies, our format for successfully setting aside and expunging convictions typically involves the following steps:

  • Preparation of all documents.
  • Obtaining a certified copy of your conviction.
  • Correctly filing documents with the court.
  • Obtaining supporting documentation and character letters when necessary/
  • Notifying all parties including the prosecutor and Michigan Attorney General.
  • Submission of fingerprints to the Michigan State Police for a record clearance.
  • Scheduling the required court hearing.
  • Preparing our client for the hearing.
  • Appearing at the hearing.
  • Providing an Order to Set Aside Conviction.

Do I have to say I was convicted of a crime after it is expunged?

Once you are granted an expungement of a crime, you are not required to ever list it on a job application or mention it in an interview. In fact, if you are asked, you can say:

I DO NOT HAVE ANY CRIMINAL RECORD. 

How to Obtain a Copy of Your Record

The Michigan State Police maintains a central registry of criminal records in a system known as the Law Enforcement Information Network. Access to LEIN is restricted to criminal justice agencies or those agencies statutorily granted authorization. However, an individual can obtain of his or her own criminal record by following the instructions on the Michigan State Police ICHAT link: http://apps.michigan.gov.

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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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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!

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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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Part 1: Introduction to felony representation.

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

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 40 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

The Difference Between Misdemeanors and Felonies

A felony is defined as an criminal offense that can carry more than one (1) year in prison, up to a maximum of life in prison. A misdemeanor is defined as a criminal offense that carry not more than one (1) year in jail. Under Michigan laws, but not in the federal system, certain offenses are classified as “high court misdemeanors” that can carry up to two (2) years imprisonment. While it sounds better to say that an offense is classified as a high court misdemeanor, it is treated as a felony under federal law because the maximum sentence is greater than 1 year in jail.

Being guilty doesn’t mean that you will be found guilty.

A felony conviction serious business. A US citizen convicted of a felony will lose various rights including the right to possess a firearm. A non-US citizen will face deportation upon being convicted of a felony. Many of our clients charged with a felony regretfully engaged in a one-time indiscretion or may have a prior criminal record.  Those charged with a felony want to AVOID A FELONY CONVICTION & AVOID JAIL. A Based upon our experience, a felony record and jail is unlikely even if you are charged with any of the following offenses:

  • Embezzlement: taking money or property from an employer.
  • Stalking, Domestic Violence: Engaging in inappropriate conduct with another person.
  • Larceny: Taking the property from in the amount of $1,000.00 or more.
  • Home Invasion: Entering into the dwelling of another with an illegal intent.
  • Bomb Threat: Making a bomb threat, even though you do not intend to carry out the threat, is a felony.
  • Using a Computer to Commit a Crime: Many crimes may concurrently involve the use of a computer such as stalking or financial crimes.
  • Malicious Destruction: Intentionally damaging the property of another can constitute a felony.
  • Felony Drug Possession: Possession of Schedule 1 drugs, analogues, ecstasy, methamphetamine constitutes a felony.
  • Maintaining a Drug House: It is a felony to keep illegal drugs in your home or vehicle.
  • Uttering & Publishing: Presenting a check to a bank that is bogus or not your property can constitute a felony punishable by up to 14 years in prison.
  • Receiving Stolen Property: Being an innocent stolen property.
  • Assault with a Deadly Weapon: Raising an object during an argument (assault with a deadly weapon).
  • Possession of Child Porn: Accidental or intentional downloading of inappropriate images.
  • CSC 4th Degree: Inappropriate physical contact with another can constitute a sex crime.
  • Drunk Driving Felony: It is a felony if a person is conviction of 3 (or more) offenses for operating while intoxicated or impaired during his or her lifetime.
  • Fleeing and Eluding: Failing to stop when signaled by a police officer to do so.
  • Resisting and Obstructing: Resisting a lawful arrest or failing to comply with a demand by the police.
  • Strangulation: Engaging in a struggle with another and doing an act that “impedes normal breathing” can constitute a felony known as “Assault by Strangulation” punishable by up to 10 years in prison.

A felony is never as bad as you think. Our clients ask us how it is even possible to get a felony dismissed, or reduced to a petty misdemeanor offense, even when the client is otherwise guilty. Most felonies can be entirely resolved without jail and without getting hit with the harsh consequences of a felony record. Contacting a local skilled Macomb County criminal defense lawyer that knows how the prosecutor and how the court system treats individuals facing felony charges should be your first step. We hope you will find this multi part series informative and helpful. The information that we have compiled is based upon our representation of more than 10,000 clients over a period of more than 40 years.

 

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

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

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

Hiring a Lawyer Does Not Make You Look Guilty!!

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

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

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

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

Some Tips When You Hire a Criminal Defense Lawyer

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

  • Does the lawyer specialize in criminal law? I would say that this is the number 1 criteria in hiring a criminal lawyer. The legal profession has moved away from the days when attorneys held themselves out to the public as “general practitioners”.  An attorney that splits his time handling practice areas outside of criminal law is rarely a good fit. Specialties exist in every area of the law such as estate planning, family law real estate and personal injury. There are hundreds of laws on the books just in the area of drunk driving alone and several thousands more covering other major practice areas.
  • How much will it cost to hire a lawyer for criminal case? Lawyers have several ways that they charge for their services. We have adopted a fixed flat fee policy to handle just about every type of criminal, drunk driving and traffic case. The fixed flat fee arrangement means that an exact cost is charged for legal services thus eliminating the mystery associated with hourly rates and other vague fee agreements.  Hourly rates on the other hand can be intimidating especially when an attorney cannot give a prediction or estimate as to how much time/hours the entire case will entail. In addition, attorneys that bill on an hourly basis do so for every phone call, text message, email and while they are driving to court and waiting in courtroom for the case to be called. Attorney fees will also depend upon the prior criminal history of the client, the seriousness of the offense, the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the time limitations imposed by the client or by the circumstances and the experience, reputation, and ability of the lawyer or lawyers performing the services.
  • Who is responsible for out of pocket costs and expenses associated with my case? Sometimes it is necessary to employ outside resources/services to assist in the defense of a criminal case.  The costs or expenses that are paid to outside parties for their services are referred to as out of pocket costs. Out of pocket costs are always the responsibility of the client and all attorneys will seek reimbursement for out of pocket costs.
  • Should I get a court appointed lawyer? The Bill of Rights includes the 6th Amendment which affords an individual facing criminal charges with the right to counsel even for those who cannot afford an attorney. Should you be charged with a crime and unable to afford an attorney, the court will appoint an attorney to provide representation. You do not get to choose your court appointed attorney.

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

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

Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 40 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).

This is Part 2 in our Felony Representation series. The outcome of a felony is dependent upon a number of variables. The local practices of the prosecutor and the  judge are a few of those variables. For example, our criminal caseload is comprised of matters (misdemeanors and felonies) which arise in the Metro-Detroit (Macomb, Oakland, Wayne and St. Clair) with the majority of cases in the following Macomb County courts:

Macomb County District Courts:

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

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

Felony Procedure: Cases begin with an investigation

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

Plea Bargaining: Good or bad?

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

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

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

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

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

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

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

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

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