Michigan Criminal Attorney Blog

A new state law that allows some Michigan drivers to avoid points for minor traffic violations is now in effect. This law is allowing Michigan drivers to take an online Basic Driver Improvement Course to avoid points for minor traffic violations. Under a state law that became effective Dec. 31, 2010, motorists ticketed for offenses such as speeding, improper passing or disobeying a stop sign may qualify to have points from the citation kept from going on their driving record by completing a course and paying court fines and costs.
Only those who meet certain conditions will receive notification of eligibility to participate in the program with the Secretary of State. The first notices to eligible drivers were mailed back in November of 2010. There are currently 10 course providers approved by the state that offer the required defensive driving curriculum. Eligible drivers have 60 days to arrange for and pass the course and may retake it as many times as necessary within that timeframe. The provider electronically notifies the Secretary of State whether drivers pass or fail. If they ultimately do not pass, the points go on their record. If they pass, the Secretary of State will not add any points. The fee for the course is determined by the provider, with the total not to exceed $100. Drivers are still responsible for paying fines and court costs involved in the traffic violation. The course may only be used once to avoid points.

A driver is not eligible if he or she:
--is in the 60-day period of course eligibility for a previous ticket.
--has already avoided points under the program.
--has a restricted, suspended or revoked license or was not issued a Michigan license.
--has three or more points on his or her record.
--held a commercial driver license or was operating a commercial vehicle at the time of the ticket.

A new Level 2 Graduated Driver's License law took effect on March 30, 2011. The law will amend the Michigan Vehicle Code in the following ways:

(1) Prohibit a driver with a Level 2 graduated driver's license (GDL) from operating a motor vehicle carrying more than one passenger who is under 21 years of age, unless: (a) passengers are members of the driver's immediate family, or (b) travel is to or from school or a school-sanctioned event.
(2) In addition, the nighttime restriction has been extended to 10:00 p.m. from the original midnight starting time. The new nighttime restriction is from 10:00 p.m. until 5:00 a.m. unless driving to or from employment.

Both of these restrictions remain for the duration of the Level 2 graduated driver's license. The sanctions for violating these new provisions are:

--A civil infraction is entered and 2 points are added to the driving record.
--Notice of the civil infraction shall be sent to a designated parent or guardian.
--GDL Level 2 period is extended for 12 months.
--A driver reexamination will be scheduled with possible license suspension and/or additional restrictions imposed.

What is a level 2 license?
--After passing the driving skills test the teen driver may be eligible for a Level 2 Intermediate License. Teen drivers must have completed Segment 1 and Segment 2 of Driver Education and be a minimum of 16 years of age to receive a Michigan Level 2 Intermediate license. Teen drivers must have their parent or legal guardian sign the Level 2 Intermediate License application verifying the 50 hours of on-the-road driving experience. All teen drivers must meet the physical and medical standards for driving and have possessed a Level 1 Learner License for a minimum of 6 months.

While public attention often focuses on prisons, the majority of offenders supervised by the Michigan Department of Corrections are not incarcerated. Some more cost effective ideas other than prison for lower-risk offenders include, community supervision and interventions. This is especially true for those who have committed property or other non-violent crimes, those whose risk is low or has been reduced through treatment and programming, and those who have completed the department's boot camp program.

Following policies and procedures of the department, probationers and parolees are managed by trained parole and probation officers who have post-secondary degrees, usually in criminal justice or related fields. Some agents supervise parolees (those who have been released from prison after serving their sentence); some supervise probationers (offenders whose sentences are served in the community); and some agents supervise all types of offenders.

There are agents, too, who supervise probationers who have completed Phase 1 of the department's Special Alternative Incarceration (SAI) or boot camp program and who are returned to the community (in Phases 2 and 3) for the balance of their sentences.

There are many ways in which agents monitor offenders behaviors. Some techniques include visiting an offender's home, contacting employers, requiring documentation of attendance at school or in required programs, substance abuse testing and contact with law enforcement agencies to check on arrests.

All offenders in community settings must comply with rules, or "orders", based on both standard and special conditions set by a court, in the case of probationers, and by the Michigan Parole Board, in the case of parolees.

In some jurisdictions, agents specialize in managing certain types of offenders, such as sex offenders, females, or offenders with mental illness or histories of substance abuse. Specialization allows an agent to become more efficient in dealing with specific types of offenders.

How can I receive calls from a prisoner?
Someone you know, a family member or friend, may annually be incarcerated. If you would like to have telephone contact with the prisoner, these are a few things to keep in mind. The following are questions that you may have regarding telephone contact with a prisoner. Prisoners can place calls to cell phones using debit or prepaid service. Three avenues exist to accept a collect call from a MDOC (Michigan Department of Corrections) facility:

1)-- A person's local business phone company has a billing agreement with EMBARQ. In this scenario, the person would be charged on his or her monthly phone bill.
2)-- A person can set up a prepaid account with Correctional Billings Services. (CBS). CBS can be contacted at 1-800-844-6591. As long as the person has money on the prepaid account, collect calls would be routed to their telephone instead of being blocked.
3)-- A person can arrange a debit telephone system where that person can send money to a prisoner. The prisoner can then have that money applied to his or her debit account. The call operates as a collect call, but the prisoner's debit account is charged for the call, not the person receiving the call. The first deposit into the account must be at least $20 and increased in increments of $5 thereafter.

How can I remove a block from calls from a prisoner?
To remove a telephone block, you need to send a letter stating you no longer want to have the block in effect and rescind the request. The prisoner would then add the number to his/her list during their add month.

What is EMBARQ? Embarq Corporation, or EMBARQ was the largest independent local exchange carrier in the United States, serving customers in 18 states and providing local, long distance, high-speed data and wireless services to residential and business customers.

Governor Jennifer Granholm signed into law on April 12, 2004, giving Michigan one of the strongest minor in possession (MIP) laws in the country. This is the first major revision of Michigan's MIP law since 1998.

Important changes in the law include the following:

1) The definition of being "in possession of alcohol" now explicitly includes blood alcohol content (BAC).
--Under the previous MIP law, a person could not be prosecuted for still having alcohol in his or her body or something that was consumed in the past or that a person no longer had control over, e.g., during digestion. Michigan's new MIP law prohibits "any bodily alcohol content".

2) Gives judges discretion to use jail time when a youth has a prior MIP conviction AND fails to complete any treatment, screening, or community service activities ordered by the court, or fails to pay any fine.

3) Gives a first-time offender the break of not having a misdemeanor record if he/she completes probation requirements.
-- This law provides for a discharge and dismissal for a first offense. When an individual who has not previously been convicted of, or received a juvenile adjudication for a violation of the MIP laws, the court could defer further proceedings and place the individual on probation.

4) Sets up a system with the Secretary of State for tracking first time offenders of the Michigan MIP law and comparable local ordinances.
-- Beginning September 1, 2004, the clerk of the court shall forward an abstract of the court record to the secretary of state if a person has pled guilty to, or offered a plea of admission in a juvenile proceeding for a violation of the new law or a local ordinance substantially corresponding to section 703 of Michigan's MIP law. The secretary of state will retain a nonpublic record of an arrest, plea, and discharge or dismissal. This record can only be furnished to the following:
A. To a court, prosecutor, or police agency upon request for the purpose of determining if an individual had already used the diversion provision.
B. To the Department of Corrections, a prosecutor, or a law enforcement agency upon request subject to the following conditions: 1) at the time of the request, the individual was employed by one of these entities or was an applicant for employment; and 2) the record was used by the entity only to determine whether an employee had violated his or her conditions of employment or whether an applicant met criteria for employment.

5) Permits 19 and 20 year olds who consumed alcohol legally in Canada the option to use this as an affirmative defense.
-- The law now includes a provision for minors who legally consume alcohol in Canada to offer this as "an affirmative defense" in a criminal prosecution. This means that the police may arrest any youth with a BAC of .02 or above. If the youth can prove he/she consumed the alcohol in a venue or location where that consumption is legal, the charge will be dismissed.

The changes in the law went into effect September 1, 2004.

A new law governing medical marijuana took effect in Michigan in December 2008. It is known as the Michigan Medical Marihuana Program (MMMP). The law is relatively short and many questions exist as to how to comply with it. The first thing for anyone to understand is that federal law still prohibits the use of marijuana. However, Michigan allows people with certain medical conditions to apply for a Medical Marihuana Registry Identification Card. Those conditions include the following:
(a) cancer, glaucoma, or positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, or nail patella.
(b) a chronic or debilitating disease or medical condition or its treatment that produces one of more of the following:
(i) cachexia or wasting syndrome;
(ii) severe and chronic pain;
(iii) severe nausea;
(iv) seizures, including but not limited to those caused by epilepsy; or
(v) severe or persistent muscle spasms, including but not limited to, those which are characteristic of multiple sclerosis.
If you are charged with a drug crime and have a valid ID card and are either a patient or primary caregiver you should understand that the law offers affirmative defenses and potential grounds for dismissal. This is something to discuss with your attorney. The media is full of stories involving busts at marijuana dispensaries and cafes. Uncertainty surrounds this burgeoning area of the law.
Make sure you closely follow the instructions for obtaining a Medical Marihuana Registry ID Card and the rules implemented by the State of Michigan if this is something you are interested in. Because of the uncertainty surrounding this law, do not hesitate to contact a Michigan attorney well versed in the MMMP. Always remember that the federal law has not changed, making marijuana use illegal.

The trial judge in People v Pinkney sentenced defendant Jamar Pinkney to 35-80 years after a jury found him guilty of second degree murder and a handful of other charges. Because the defendant used a gun in the commission of the crime and the jury found him guilty of felony firearm, the defendant must serve an additional 2 years, for a minimum sentence of 37 years before he will be eligible for parole. Felony firearm charges essentially arise when a defendant uses a gun while committing a felony. Michigan law does not allow this 2 year felony firearm sentence to run concurrently with the larger felony sentence. Therefore, the defendant convicted of felony firearm must always serve an additional 2 years in prison. This is a mandatory sentence, and a trial judge does not have discretion to sentence a defendant to less than 2 years for a felony firearm conviction.
The judge has wide latitude to sentence for a second degree murder conviction. After a felony conviction, the probation department interviews and assesses the defendant, then makes a recommendation to the judge on the proposed sentence. This recommendation is just that, and is not binding on the judge. The judge also considers the sentencing guidelines. These guidelines are comprised of a number of variables and considerations. They depend on the crime committed, how the crime occurred and the defendant's previous record. Both the prosecution and the defense have an opportunity to score the defendant and challenge the proposed guidelines if they disagree with the guidelines as drafted by the probation department. Ultimately, the judge has the final decision as to any disputed variables within the guidelines. In People v Pinkney the judge exceeded the guidelines, after giving his reasons for doing so on the record. At the sentencing, victims, the defendant and lawyers for both sides have an opportunity to explain why they think a sentence is appropriate. Judges can also consider other evidence such as written letters when determining the sentence. Sentencing is a very important part of the criminal process and should be carefully considered by a defendant and her attorney. Make sure that you consult with an experienced criminal attorney before you or a loved is sentenced in a Michigan felony case.
Judge slams door on killer dad.

To view the contents on www.detnews.com, go to:
http://detnews.com/article/20100415/METRO01/4150467/Judge-slams-door-on-killer-dad

Criminal trials in Michigan will always involve evidence, some of which will come in via witnesses. Defendants have the right to cross examine these witnesses. This right means that a defendant, usually through her attorney, can question and often discredit a witness. There are many ways to cross examine a prosecution witness. This might include using the witness testimony from the preliminary examination and comparing it to their trial testimony. Any inconsistencies, particularly on critical issues, may lead the judge or jury to give less or even no weight to the offered testimony. This is a subtle skill, one that lawyers take many years to perfect. It is most effective after an attorney has had an opportunity to cross examine hundreds or even thousands of witnesses in trial, deposition, preliminary examination and other sworn testimony settings.
Likewise, if the defense puts forth any witnesses, the prosecution may cross examine them. The same techniques apply, with the prosecutor looking for differences from prior statements to challenge testimony from the defense witnesses. Proper preparation by the defense attorney is key to help combat the weaknesses in the defense testimony that the prosecution will likely attempt to exploit. Sometimes the defense attorney will elicit seemingly negative aspects of a defense witness' testimony. This way, the prosecution cannot get the "ah hah!" moment when the witness is confronted with something that appears negative for the defense. If the fact comes out voluntarily through the defense attorney's questioning on direct exam, the jury will not view it as damaging to the defense.

Doctors testify in fatal shooting trial; possible sex abuse at issue.

To view the contents on www.freep.com, go to:
http://www.freep.com/article/201003311354/NEWS02/100331047

In a closely watched Michigan murder case, Jamar Pinkney took the stand in his own defense. People v Pinkney involves allegations that Jamar Pinkney fatally shot his son, Jamar Pinkney, Jr after his son admitted to improperly touching his 3 year old sister. While the defendant was charged with murder in the first degree, felony firearm and felonious assault, the defense is countering that the shooting actually constituted manslaughter. The defendant testified that he lost control after learning of the admitted molestation of his daughter, resulting in the beating and shooting of his son. The jury can consider all testimony and evidence. If the jury is convinced that the defendant acted in the heat of passion, they could convict him of manslaughter. Various witnesses testified essentially consistently that Jamar Pinkney, Sr did not exhibit any signs that he might commit such a crime in the three hours leading up to the shooting. Instead, the witnesses agreed that he sat and talked to his son, his son's mother and others while they tried to determine how to handle the alleged sexual assault.
To view the contents on www.detnews.com, go to:
http://detnews.com/article/20100331/METRO01/3310385/

In a previous post we offered a general overview of drunk driving law in Michigan. In this entry we will explain the basic penalties for various drunk driving violations. The two most common first time offenses related to drinking and driving are Operating While Intoxicated (OWI) and Operating While Visibly Impaired (OWVI). OWI convictions can carry a fine of $100 to $500 and one or more of the following: 1) up to 93 days in jail; 2) up to 360 hours of community service; 3) driver license suspension for 30 days plus further restrictions; 4) possible vehicle immobilization; 5) possible ignition interlock; 6) 6 points on your driving record; and 7) $1,000 Driver Responsibility Fee for 2 years.

OWVI is a lesser charge than OWI and the punishment involves a fine of up to $300 and one or more of the following: 1) up to 93 days in jail; 2) as much as 360 hours of community service; 3) driver license restriction for 90 days; 4) possible vehicle immobilization; 5) 4 points on your driving record; and 6) $500 Driver Responsibility Fee for 2 years.

The penalties increase significantly for any 2 such convictions within 7 years. Most importantly, 3 alcohol-related offenses within your lifetime are a felony and carry mandatory jail time.

Alcohol-related offenses that cause death or serious injury are also felonies. An accident resulting in death includes a sentence of up to 15 years and one resulting in serious injury can result in a 5 year sentence. A special exception is carved out for a drunk driving accident that results in the death of an emergency responder. This crime carries up to a 20 year prison sentence.

Courts are imposing stiffer penalties for these crimes everyday. This makes it imperative that you seek out competent legal representation as soon as you are able.

Each year, nearly 50 thousand Michigan drivers are charged with impaired driving offenses. While people generally think of alcohol intoxication as the only way a person can violate this area of the criminal law, infractions can occur because of driving after ingesting illegal drugs and even certain prescribed drugs. This entry will act as a broad overview of this very complex subject. If you find yourself charged with impaired driving contact a lawyer immediately.

Alcohol and drugs effect each of us differently. Lack of sleep or food can make a person more susceptible to the effects of drinking. It is always a good idea to have a designated driver, but if you are reading this entry, you or a loved one may be facing a drunk driving charge. Having an attorney who understands the science behind drunk driving cases is important. The Draper Law Firm regularly represents drivers charged with alcohol related offenses. We also act as counsel for insurance companies and bars where alcohol consumption is at the center of a civil lawsuit. Because of this nearly two- decade experience, our attorneys can look at the lab results and other scientific evidence to determine whether an expert would assist the defense of the impaired driving offense. We also have relationships with top local toxicologists who can review the case and, if necessary, testify at trial.

A Preliminary Breath Test (PBT), is often offered at the scene by a law enforcement officer. If you refuse the PBT you will be charged with a civil infraction and be fined up to $150.00. The PBT is not a test that will be used at trial, but it gives the officer valuable information and can lead to further testing such as a Breathalyzer or a blood test. Just because a driver "passes" a PBT, does not mean that they cannot be checked for some other type of chemical intoxication.

Michigan has an Implied Consent Law, meaning that all drivers are considered to have consented to a chemical test to determine bodily alcohol content. Refusal of the test will result in a suspension of driving privileges and 6 points on your driving record.

There are a number of different charges that fall under the broad umbrella of "drunk driving." Operating While Visibly Impaired means just that, that the driver has her ability to operate a motor vehicle visibly impaired by alcohol or drugs. Operating While Intoxicated means that alcohol or drugs have substantially affected your ability to drive, usually shown by a blood alcohol content above 0.08 or a positive drug test. There are separate rules and conditions for drivers under the age of 21. If you are a young person charged with such a crime, ask your attorney about the special ramifications on your license and your future. Young adults have specific concerns and some additional ways to resolve cases based upon their youth.

When you have a scheduled court hearing in a criminal case, you need to take it very seriously. Unlike a civil case where you may only appear in court for a settlement conference and then trial, in a criminal case the defendant is required to appear at each of the sometimes numerous steps along the way. These can include the arraignment, the pretrial, the preliminary examination, the arraignment on the information, the final pretrial and all motions. Besides checking with your lawyer to find out the time, date and location of the hearing, you should consider your personal appearance. While it may not seem fair, the judge, jury and prosecutor will assess you based upon how you look. The best plan is to wear something clean and professional. Treat this court appearance the way you would treat a job interview. A good visual impression will likely mean that you are going to get the best deal, sentence or verdict that you possibly can. How can you do this?

Start with any body piercings. While you may love that nose ring, the judge probably will not. Take out any facial hardware other than earrings. Never wear shorts, denim or t-shirts, particularly ones with political or humorous statements. If you are a man and have a suit, that is almost always the best choice. If you do not own a suit, dress pants and a button down shirt will work just fine. Women should wear a conservative dress or suit. If you have a mohawk, this is the time to wear it down or slicked back. If you have a bunch of tattoos on your arms or legs, do your best to cover them up. You do not want the judge or jury to rate you based on body art.

Check the court website prior to your hearing to see if they allow cell phones in the courthouse. Some courts allow only phones without cameras, others outlaw cell phones entirely. Make sure you know the rule, especially if you are getting dropped off. I have had clients who have been forced to hide their cell phones outside in the bushes because they did not have a car at the court and the court did not have storage lockers. Fewer courts have such lockers, so do not count on this accomodation. The rules are really simple: plan ahead, find out when and where you are to appear and make sure you put your best foot forward so your experience with the criminal justice system is as painless as possible.

In a previous post, we discussed basic misdemeanor stalking in Michigan. If certain elements are met, the charge may increase to aggravated, or felony stalking. Because it is a felony, it carries enhanced penalties including up to 5 years in prison and a fine of $10,000.00. Aggravated stalking includes the typical definition of a willful course of conduct involving repeated harassment of another that would cause that individual to feel terrorized, frightened, intimidated, threatened, harassed or molested. The course of conduct is a pattern involving 2 or more instances of contact. The contact can take many forms, the most common being visiting a person's home or workplace or contacting the person by phone or email.
What makes stalking a felony is when the alleged stalking violates a restraining order, injunction, condition of probation or parole. It can also become a felony if a credible threat is made against the victim or the victim's family. A threat is called credible if it includes a threat to kill or seriously injure another and importantly, that causes the purported victim to reasonably fear for his or her safety. This excludes a joking claim that you are going to "kill" your friend for eating the last brownie at a party.
The penalty can increase to a 10 year prison term if the victim is less than 18 years of age and the alleged stalker is 5 or more years older than the victim.
Felony stalking is a very serious matter, with the real likelihood that the prosecution will seek a significant term behind bars. If you or someone you know is charged with this crime, get help from a Michigan criminal defense attorney immediately.

With the increasing modes of electronic communication available, charges of stalking are on the rise. In Michigan, misdemeanor stalking means a series of two or more separate noncontinuous acts involving harassment of another that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested and actually causes the victim to feel that way. MCL 750.411h.

The 2 or more acts must be unconsented contact and may include any of the following:

• appearing within the sight of the victim;


• visiting the individual's workplace or residence;


• contacting the victim by telephone;


• sending mail and electronic communication to the individual.

If convicted of basic misdemeanor stalking, the penalty can be imprisonment for up to 1 year and/or a fine not to exceed $1,000.00. The punishment can increase significantly if the victim is a minor and there is a 5 year age gap. These facts turn the acts into a felony punishable by 5 years in prison and a fine up to $10,000.00. Misdemeanor stalking convictions can include a 5 year term of probation and court-ordered psychiatric treatment or evaluation. With texting, Facebook, Myspace, email and instant messaging, this crime can be quickly committed. Of course, as with all criminal matters, there are available defenses.

If you are charged with any type of stalking, immediately refrain from all contact with the alleged victim. Next, contact a Michigan criminal defense attorney. Your first inclination might be to explain to the police how this is just one big misunderstanding. Fight this urge to tell the authorities your side of the story. Your initial explanation should be to your lawyer. Save all of the allegedly offending communications (texts, emails, etc.) and provide a copy to your attorney. While this may seem like a petty complaint by a former friend or ex, law enforcement and the courts take it very seriously.

In Michigan, defendants charged with murder may be ordered to undergo a psychiatric examination. The People will likely have a state sponsored doctor conduct an exam, and likewise, the defense will often request a similar study of the defendant. Sometimes the issue is the defendant's state of mind at the time of the alleged crime, other times the question is the defendant's general ability to tell right from wrong. The court may also inquire as to the defendant's ability to stand trial, whether she understands the charges against her and whether she is competent to stand trial. In People v Pinkney, the defendant was examined for criminal responsibility and competency to stand trial. These examinations may last a number of hours and take place over a period of days or weeks. The findings may spur a battle of the experts, that is if the defense and People's experts disagree as to the defendant's mental state.

To view the contents on www.wwj.com, go to:
http://www.wwj.com/Pinkney-To-Undergo-Evaluation-Before-Murder-Trial/5845939