Search Results for: traffic

Michigan Criminal Law: Traffic Offenses

Operating a motor-vehicle in the State of Michigan requires compliance with a litany of regulations pursuant to the traffic code and also other criminal statutes. Charges for violating the motor-vehicle code range from civil infractions (speeding, parking tickets, i.e., more minor issues) to serious felonies (operating while intoxicated causing a death). Further, convictions of these types of charges may also result in additional sanctions administered by the Department of State.
For more information on other traffic offenses, such as operating while intoxicated, click here.
For information on additional traffic offenses such as operating on a suspended/revoked/denied license, click here.
For information about vehicle owner responsibilities if a driver is charged with OUI, click here.
Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.
Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that they will be convicted.
If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Circumstances may vary significantly.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

Michigan Criminal Law: Traffic Offenses; Operating on a Suspended/Revoked/Denied License

Michigan driving privileges are administered by the Department of State. For a link to their website, click here.

A person may lose or have their license suspended for a variety of different reasons. Michigan has a long and thoroughly detailed traffic code. Convictions for certain types of criminal charges will also result in automatic suspensions or even revocation. Even failing to pay child support may result in license suspension. For more specific information on the various Michigan traffic laws, click here. Regardless of the reason, if a person continues to operate a vehicle with a suspended, revoked, or denied license, they may be charged with a misdemeanor traffic offense.
Generally speaking, these allegations are usually filed under MCL 257.904 (1), which notes: “A person whose operator’s or chauffeur’s license or registration certificate has been suspended or revoked and who has been notified as provided in section 212 of that suspension or revocation, whose application for license has been denied, or who has never applied for a license, shall not operate a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state.”
This charge, for first time offenders, if convicted, is punishable by “imprisonment for not more than 93 days or a fine of not more than $500.00, or both. Unless the vehicle was stolen or used with the permission of a person who did not knowingly permit an unlicensed driver to operate the vehicle, the registration plates of the vehicle shall be canceled by the secretary of state upon notification by a peace officer.” MCL 257.904 (3)(a).

 

There is also an enhanced penalty for individuals with priors if they get convicted again and enhanced penalties and charges if someone operating on a suspended/revoked/denied license causes property or personal injury while operating the vehicle. See MCL 257.904 (8) & (9).
If convicted as a first-time offender, the sanctions may also include a term of probation, vehicle impound or other sanctions from the Department of State, including additional license-suspensions, driver responsibility fees, community services, or other possible sanctions. While many courts tend to impose lighter sanctions for convictions regarding this type of charge, it varies significantly depending on the court and particular judge. Further, the court’s sanctions for conviction are only one component; the Department of State will impose significant sanctions for conviction as well.
Whether a person was operating the vehicle is an element of the offense. However, the prosecutor may prove this circumstantially. Key issues include whether the vehicle was running, where the accused individual was found in the vehicle, where the vehicle was located, whether the vehicle was in gear, witness accounts of either the driver or the vehicle that evening, testimony of officers who investigated the matter, and/or other factors. Even though a person may be in a different portion of the car when the police conduct their stop and investigate, if there is enough circumstantial evidence, the accused could be convicted even if they were not driving when they were pulled over.

 

Additionally, the prosecutor needs to prove the other elements as well, including that the operator received notice “as provided in section 212.” MCL 257.904 (1). This notice provision is very important.  Occasionally operators, due to issues with mail or old addresses, may not even be aware their license was suspended. This notice provision may provide an operator with an important defense against this charge in certain situations. However, in a vast majority of situations, there is a clear chain of evidence showing that the Department of State properly notified the operator. Ultimately, though, it is a question of fact that the prosecutor needs to prove.

 

Owners of a vehicle could also be charged if they permit someone to drive a vehicle if that operator has a suspended/revoked/denied license. MCL 257.904 (2). The elements are very similar for this variation. The prosecutor must prove beyond a reasonable doubt most of the same elements as they would against the driver/operator; but they also need prove that the owner “knowingly” allowed the driver/operator to operate the vehicle.

Our experienced trial attorneys fight hard for our Michigan clients. Our firm helps drivers get their licenses back and we help defend our clients against all kinds of traffic violations. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on other traffic offenses, such as Operating While Intoxicated, click here and here.
Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

Michigan Criminal Law: Traffic Offenses; OWI/OUI’s: Vehicle Owner’s Responsibilities

Under Michigan law, while the actual operator’s potential charges may be serious, the owner/controller of the vehicle who “knowingly” authorizes or permits the operator to drive their vehicle while impaired or intoxicated could face criminal charges as well.
Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
Owners and operators may be charged if they “knowingly” allow someone to operate their vehicle while intoxicated or impaired.

As noted in MCL 257.625 (2):
The owner of a vehicle or a person in charge or in control of a vehicle shall not authorize or knowingly permit the vehicle to be operated upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state by a person if any of the following apply:

(a) The person is under the influence of alcoholic liquor, a controlled substance, other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) The person’s ability to operate the motor vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

The consequences for a conviction for the owner or controller of the vehicle depend on the underlying charge for operator of the vehicle. MCL 257.625 (10) explains the list of possible maximum penalties in terms of jail/prison and fines.
If, for example, the intoxicated operator caused a death, the person who permitted the operator to use the vehicle may be charged with a felony “punishable by imprisonment for not more than 5 years or a fine of not less than $1,500.00 or more than $10,000.00, or both.” MCL 257.625 (10)(b).
Granted, this charge is not as serious as the charge for the alleged operator at the time. The alleged operator would have been charged with a felony ” punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both,” see MCL 257.625 (4)(a), or “not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00, or both” if the deceased was a “police officer, firefighter, or other emergency response personnel.” MCL 257.625 (4)(c). Ultimately, a bulk of the liability will fall on the operator of vehicle; however, a felony charge punishable by up to five years in prison against the owner/controller is still a serious offense.
However, more likely, an owner or controller of the vehicle will be charged with a misdemeanor, “punishable by imprisonment for not more than 93 days or a fine of not less than $100.00 or more than $500.00, or both.” MCL 257.625 (10)(a).

Obviously, the prosecutor would need prove the “authorize or knowingly permit” portion of this charge against the owner/person in charge of the vehicle. This would be a key issue. However, they may prove this circumstantially. This question is ultimately a question of fact that may not be resolved until a trial.
We represent clients throughout Michigan on traffic offenses and all types of criminal charges. Our experienced trial attorneys are here to assist you with your legal needs. For a free initial consultation, please call our Lansing office at (517) 507-5077. Drive safely.

*Please note that this discussion is only focused on one potential component of a situation involving allowing a intoxicated or impaired operator to use another person’s vehicle; it does not explore the possible civil issues (i.e., the owner could be sued through the civil courts if, for example, the operator gets in accident) or the possible administrative (i.e., there could be significant license sanctions if convicted) sanctions.
**Please note this post is only general legal advice. Circumstances may vary. If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

Michigan Criminal Law: Traffic Offenses; OUI/OWI’s under Michigan Law

Generally speaking, assuming there is no accident involving injury to person or significant property damage, there are three primary drunk-driving charges under Michigan law; “super-drunk,” operating while intoxicated, and operating while impaired. The specific charge is heavily influenced by the accused individual’s alleged blood alcohol content, or “BAC.” This alleged level is usually determined through either breath-based tests like a Datamaster at the police station or by a blood-draw.

OUI/OWI’s involving death or personal injury causing “significant impairment of bodily function” are charged as felonies. See MCL 257.625 (4) & (5). These are the most severe charges. If convicted, a person who causes death to a law-enforcement officer while intoxicated, for example, could be looking at up to twenty-years in prison or more if they have prior felony convictions. See MCL 257.625 (4)(c). These charges are very serious and may also involve significant personal injury lawsuits and permanent administrative sanctions for the alleged defendant; in addition to the possible penalties for a conviction related to the criminal charges.

These various types of OUI/OWI charges also have repeat-offender enhancements for people with multiple convictions. If a person has prior convictions or even a single prior conviction, their next charge could mean their penalties if convicted would escalate considerably, including up a felony charge depending on the number of prior convictions and length of time.

The following description breaks down and lists the possible penalties for first-time offenders for three of the more common OUI/OWI charges.

MCL 257.625 (1) states “A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated.”

Michigan has a “super-drunk” law. This charge is usually levied against someone if their alleged blood-alcohol level is above .17. MCL 257.625 (1)(c). Generally speaking, a person convicted of this variation is looking at the toughest punishments for first-time offenders. Those punishments may include “imprisonment for not more than 180 daysMCL 257.625 (9)(a)(ii), probation up to two years, community services, fines, costs, or other sanctions. Further, a person convicted of this charge may have actions taken against their vehicle or their license by the Department of State, including mandatory suspensions, vehicle impound, license revocation, driver’s responsibility fees, or sanctions as authorized and administered, depending in part on a person’s prior driving record, by the Department of State.

Operating While Intoxicated is the middle tier; this is commonly charged against individuals who have an alleged level above .08 but less than .17.  MCL 257.625 (1)(b).  The prosecutor needs to prove the elements of this charge beyond a reasonable doubt in order to obtain a conviction. This charge is common if a person tests above the “legal limit” of .08 BAC. If convicted, sanctions may include up to 93 days in jail, probation up to two years, community services, fines, costs, or other sanctions. Further, a person convicted of this charge may have actions taken against their vehicle or their license by the Department of State, including mandatory suspensions, vehicle impound, license revocation, driver’s responsibility fees, or sanctions as authorized and administered, depending in part on a person’s prior driving record, by the Department of State.

Operating While Impaired is the lowest tier; this is commonly charged against individuals who have an alleged level below .08. MCL 257.625 (1)(c).

As the name implies, the prosecutor must prove “due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance, the person’s ability to operate the vehicle is visibly impaired.” MCL 257.625 (3).

It is important to note that there is no floor, in terms of the level. If a person, for example, had a very low-level, say around .03, and if the prosecutor could still prove that it impaired their driving, the individual could be convicted of Operating While Impaired. Generally speaking, the penalty for this charge for a conviction, while the possible jail term is the same as Operating While Intoxicated, or 93 days, MCL 257.625 (11), the rest of the possible sanctions, including those administered by the Department of State, are significantly less than the other charges.

The term “legally drunk” under Michigan law is a misnomer. The varying alleged blood-alcohol levels assist in categorizing the various offenses; however, even very low levels may be basis for a charge if they impair a person’s ability to drive.

We represent clients throughout Michigan on traffic offenses and all types of criminal charges. Let our highly experienced and diligent trial attorneys assist you. For a free initial consultation, please call our Lansing office at (517) 507-5077.

For information on additional Michigan Traffic offenses such as operating on a suspended/revoked/denied license, click here.

For information about vehicle owner responsibilities if a driver is charged with OUI, click here.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

 

 

 

Michigan’s Driver Responsibility Fees are being phased out

Michigan’s Driver Responsibility fees are being phased out by 2019. The Legislature took an important step to help lessen some of the harsher collateral consequences from certain types of traffic convictions or high point accumulation with the passage and implementation of Public Act 250 of 2014, now codified as MCL 257.232a.

However, this relief is not necessarily immediate and is not immediate for all.

Michigan’s Department of State has more information on the new laws. For more information, click here and here.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

Michigan Criminal Law: Conviction/Post Conviction

A conviction for a criminal charge may have a substantial impact on someone’s life. There may be additional sanctions that carry forward well after a person has finished up their obligations to the court. People may have a long road back to get their licenses restored after traffic convictions.

However, in certain situations, there may be programs available to would keep a conviction off someone’s record if they are interested in pleading guilty to a pending charge. Further, some people may be able to ask a court to set-aside their original conviction and expunge their record.

For information on the Holmes Youthful Trainee Act, click here.
For information on expunging prior convictions, click here.

For information on sobriety/alternative court programs, click here.

For information on DLAAD hearings, click here.

For information on probation violation hearings, click here.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.
Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that they will be convicted.
If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Circumstances may vary significantly.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

Michigan Criminal Law: Conviction/Post Conviction DLAAD Hearings/Driver’s License Restoration

If a person is charged and convicted of a “traffic” criminal offense in Michigan, they may face sanctions administered by courts and Department of State. Driver Responsibility fees, for example, may persist well after a person finishes up their obligations to the court.

The Department of State has been delegated with substantial authority to regulate and control driver’s licenses and license-related procedures by statute. They have their own system of administrative hearing officers, reviews, and standards. While their authority is somewhat limited in comparison to a court, they have a lot of control over whether a person is able to legally drive in Michigan. For example, they may impose additional sanctions in conjunction with penalties imposed by the court because of a conviction for a traffic offense.

While there are two separate processes, the courts and Department of State are also significantly intertwined. In Michigan, the court will send an abstract of the plea or conviction, depending on the offense, to the Department of State. It’s up to the Department of State to pursue the appropriate sanction. These sanctions are then subject to a series of administrative reviews and appeals if the driver wishes to challenge their actions. Ultimately, unless the laws state otherwise, there should be judicial review.

Through the Department of State, there may be relief available even if a person is facing a possible license suspension because of a conviction through the courts. With certain types of traffic offenses, depending upon a person’s prior history, they may be eligible for a restricted license. Ultimately, there are procedures which lead to judicial review, but that ‘s not available usually until the Secretary of State has issued their “final determination” and the various internal administrative appeals have been exhausted. Notably, a person may appeal a ruling after a hearing administered through the Driver’s License Assessment and Appeals Division (DLAAD) through their applicable Circuit Court. (Hardship appeals, to get a restricted license, for example, may be pursued in certain situations.)

Things get even more complicated when residents of one state have license-related offenses in other states. The Michigan Department of State’s Office, generally speaking, will pursue the appropriate sanction once they are notified that a Michigan resident has a conviction or, depending on the charge, a guilty plea, to a traffic offense, from another state. However, they won’t know automatically. Occasionally, there are delays in the reporting processes between the various states. Occasionally, the state that issued the original license might not be aware that one of their residents picked up a conviction or suspension in another state. While there are uniform compacts that have streamlined a lot of these procedures, there is no federal, nationalized system for driver’s licenses and ultimately it depends on the respective states.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

In contrast to many criminal “traffic offenses” administered through the court-system; with Department of State proceedings, you are not entitled to a lawyer payable at the public’s expense if you cannot afford to retain a lawyer. You may bring your own lawyer if you wish to do so. However, you must obtain your own counsel. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

 

Michigan Property Law: Nuisances under Michigan Law

Nuisance Under Michigan Law

A nuisance, broadly stated, is something that interferes with either the use or enjoyment of property. There are numerous categories and sub-categories for this term. Generally speaking, all nuisances start with a key division between actions that are classified as either private nuisances or public nuisances.

A private nuisance is a civil wrong that occurs when one person uses their property in a way that interferes with the use or enjoyment of another person’s property. Examples of private nuisances include: pollution of soil; streams; or underground water supplies, any interference with comfort such as foul odors, noxious gas, smoke, loud noises, excessive lighting, and more. Robert Frost, for example, in his poem Mending Wall, describes some additional scenarios which could be classified legally as private nuisances.

While a private nuisance is aimed at use and enjoyment of an individual or small group’s personal property, a public nuisance concerns an interest shared by the public as a whole, and is considered a minor crime. While the interest of deterring a private nuisance is to increase the use and enjoyment of land, the interest of deterring a public nuisance is to maintain the safety, comfort, and convenience of a community. Examples of public nuisances under Michigan law include, firing fireworks in a street, obstructing a roadway, polluting a waterway, harboring a dangerous animal, and more. As stated previously, public nuisances are a crime, and are dealt with in criminal court.

In Michigan, nuisances can be broken down even further into four additional categories: nuisance per-se, nuisance in fact, intentional nuisance, and negligent nuisance. A nuisance per-se, broadly stated, is an act, occupation, or structure that is at all times and under any circumstances considered hurtful to the health, tranquility, or morals of the community, regardless of location or surroundings.

A nuisance in fact, broadly stated, is an act, occupation, or structure that is considered becomes a nuisance because of its relation to certain circumstances or surroundings. Thus, a nuisance in fact can be caused by either the location of the premises, or the type of business being conducted on the premises.

An intentional nuisance is simply a nuisance caused by the intentional act to cause such nuisance, where a negligent nuisance is when there is an unreasonable risk of injury to others because of the failure to act by the person charged with causing a nuisance.

NUISANCE STATUTES/EXAMPLES OF NUISANCES

MCL 600.2940 is Michigan’s private nuisance statute, and awards damages to a party that can prevail on a nuisance claim.

MCL 600.3801 is Michigan’s public nuisance statute, and it bans the use of property for activities that are harmful to a community, such as, prostitution, gambling, illicit transfer of intoxicants, animal fighting, and human trafficking.

Other types of Michigan public nuisance statutes are: MCL 41.411 (for township and village public services), MCL 46.201 (concerning county parking lots), MCL 252.202 (concerning the use of junkyards), MCL 259.441 (concerning airports), MCL 280.423 (concerning sewage), MCL 286.218 (concerning pests and plant disease), MCL 286.473 (concerning farms), MCL 324.11520 (concerning the environmental protection act), MCL 324.3109 (concerning water resources), and MCL 287.277 (concerning dogs). This is not an exhaustive list, but it provides an idea of the type of public nuisances that exist.

ELEMENTS OF A NUISANCE/STATUE OF LIMITATIONS

In order to be liable for damage caused by a nuisance, the defendant must have 1) created the nuisance, 2) owned or controlled the property from which the nuisance arose, OR (3) employed another to do work that he or she knew was likely to create a nuisance. Gelman Sciences v. Dow Chem Co., 202 Mich. App. 250 (Mich. 1993).

Other elements may exist, and depend on what type of nuisance is claimed, who the parties are, and a variety of other factors. Finally, the statute of limitations to bring a claim is three-years, and is controlled by MCL 600.5805 (10). If you are dealing with the abatement of a public nuisance, however, this timeline is more complicated and may vary. MCL 600.3815.

REMEDIES

A plaintiff can recover money damages if s/he has suffered actual damages from the nuisance. Injunctive relief may also be appropriate in situations where money damages are inappropriate or inadequate. For example, if a nuisance is on-going, injunctive relief may be appropriate to stop the nuisance.

Nuisance law can be very complicated, depending on the situation at hand, and should not be taken lightly. If you think you might have a nuisance claim, or are the defendant in a nuisance action, I highly you recommend that you seek an attorney.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

The attorneys at Crowley, Cornish, Rockafellow and Sartz, PLLC would like to thank the contributions of Dan Barnett, second-year law student at Michigan State University College of Law, and legal assistant for Crowley, Cornish, Rockafellow & Sartz, PLLC for his contributions as co-author of this post.

Michigan Property Law: Nuisance

WHAT A NUISANCE

“Good fences,” to quote Robert Frost, “make good neighbours.”

Unfortunately, for property owners, a good fence might not be enough. Actions by their neighbors may impact their quality of life and their “bundle” of property rights, including the right to use and the right to enjoy their property. Further, actions by individual property owners may be detrimental to an entire community. There may be, however, legal remedies available to assist both private individuals and groups of people with these issues.

A nuisance, broadly stated, is something that interferes with either the use or enjoyment of property. Nuisance tort-law is certainly not a new concept. These types of legal concerns have been adjudicated for centuries in various forms.  There are numerous categories and sub-categories for this term. Generally speaking, all nuisances start with a key division between actions that are classified as either private nuisances or public nuisances.

A private nuisance is a civil wrong that occurs when one person uses their property in a way that interferes with the use or enjoyment of another person’s property. Examples of private nuisances include: pollution of soil; streams; or underground water supplies, any interference with comfort such as foul odors, noxious gas, smoke, loud noises, excessive lighting, and more. Robert Frost, for example, in his poem Mending Wall, describes some additional scenarios which could be classified legally as private nuisances.

While a private nuisance is aimed at use and enjoyment of an individual or small group’s personal property, a public nuisance concerns an interest shared by the public as a whole, and is considered a minor crime. While the interest of deterring a private nuisance is to increase the use and enjoyment of land, the interest of deterring a public nuisance is to maintain the safety, comfort, and convenience of a community. Examples of public nuisances under Michigan law include, firing fireworks in a street, obstructing a roadway, polluting a waterway, harboring a dangerous animal, and more. As stated previously, public nuisances are a crime, and are dealt with in criminal court.

In Michigan, nuisances can be broken down even further into four additional categories: nuisance per-se, nuisance in fact, intentional nuisance, and negligent nuisance. A nuisance per-se, broadly stated, is an act, occupation, or structure that is at all times and under any circumstances considered hurtful to the health, tranquility, or morals of the community, regardless of location or surroundings.

A nuisance in fact, broadly stated, is an act, occupation, or structure that is considered becomes a nuisance because of its relation to certain circumstances or surroundings. Thus, a nuisance in fact can be caused by either the location of the premises, or the type of business being conducted on the premises.

An intentional nuisance is simply a nuisance caused by the intentional act to cause such nuisance, where a negligent nuisance is when there is an unreasonable risk of injury to others because of the failure to act by the person charged with causing a nuisance.

NUISANCE STATUTES/EXAMPLES OF NUISANCES

MCL 600.2940 is Michigan’s private nuisance statute, and awards damages to a party that can prevail on a nuisance claim.

MCL 600.3801 is Michigan’s public nuisance statute, and it bans the use of property for activities that are harmful to a community, such as, prostitution, gambling, illicit transfer of intoxicants, animal fighting, and human trafficking.

Other types of Michigan public nuisance statutes are: MCL 41.411 (for township and village public services), MCL 46.201 (concerning county parking lots), MCL 252.202 (concerning the use of junkyards), MCL 259.441 (concerning airports), MCL 280.423 (concerning sewage), MCL 286.218 (concerning pests and plant disease), MCL 286.473 (concerning farms), MCL 324.11520 (concerning the environmental protection act), MCL 324.3109 (concerning water resources), and MCL 287.277 (concerning dogs). This is not an exhaustive list, but it provides an idea of the type of public nuisances that exist.

ELEMENTS OF A NUISANCE/STATUE OF LIMITATIONS

In order to be liable for damage caused by a nuisance, the defendant must have 1) created the nuisance, 2) owned or controlled the property from which the nuisance arose, OR (3) employed another to do work that he or she knew was likely to create a nuisance. Gelman Sciences v. Dow Chem Co., 202 Mich. App. 250 (Mich. 1993).

Other elements may exist, and depend on what type of nuisance is claimed, who the parties are, and a variety of other factors. Finally, the statute of limitations to bring a claim is three-years, and is controlled by MCL 600.5805 (10). If you are dealing with the abatement of a public nuisance, however, this timeline is more complicated and may vary. MCL 600.3815.

REMEDIES

A plaintiff can recover money damages if s/he has suffered actual damages from the nuisance. Injunctive relief may also be appropriate in situations where money damages are inappropriate or inadequate. For example, if a nuisance is on-going, injunctive relief may be appropriate to stop the nuisance.

CLOSING THOUGHTS

Nuisances come in many different shapes and sizes. For example, if a neighbor puts up a large building that blocks all of the sunlight from getting to your property, you may have a private nuisance claim against that neighbor. Similarly, if your neighbor is continuously working with loud power tools that are so loud that they interfere with the use and enjoyment of your property, you may have a private nuisance claim. These are only some possible examples of a private nuisance claim.

A public nuisance may exist if a stream in your community is being polluted by a business. In that case you, and the rest of the members of the community, may have a public nuisance claim against the polluting business. Another possible public nuisance claim would be if a business is opened that deals in the type of unlawful activities noted above, such as gambling or prostitution. If this happens, you, as well as the rest of your community members, may have a public nuisance claim against that establishment.

Nuisance law can be very complicated, depending on the situation at hand, and should not be taken lightly. If you think you might have a nuisance claim, or are the defendant in a nuisance action, I highly you recommend that you seek an attorney.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For information on Deeds under Michigan Law, click here.
For information on the Summary Proceedings Act, under Michigan Law, click here.
For information on real-estate litigation, notably lawsuits involving homeowners and builders, click here.

The attorneys at Crowley, Cornish, Rockafellow and Sartz, PLLC would like to thank the contributions of Dan Barnett, second-year law student at Michigan State University College of Law, and legal assistant for Crowley, Cornish, Rockafellow & Sartz, PLLC for his contributions as co-author of this blog post.

Michigan Criminal Defense and Criminal Law

Anyone who has been accused of a crime in the State of Michigan knows that it is a confusing and harrowing experience. Following is a brief description of the process involved for a criminal Defendant.
 
The following is overview of the process. For more specific information, please visit here:

FELONY CASESgumball

What Happens When You are Arrested?

If you have been arrested for breaking a criminal law, you will be taken to the district court for an arraignment. You will be held by the police or sheriff until a bond is set and/or the arraignment takes place. The arresting police department will know where and when the arraignment will take place.

The arraignment is held before a district court judge or magistrate. At the arraignment, the judge or magistrate will explain to you (the defendant) the charges, your constitutional rights, and the possible consequences if you are convicted of the charge. The court also determines whether you can be released on bond and, if so, will set the bail amount and collect the bail. At that time, a date will be set for a preliminary examination.

The court may appoint an attorney to represent you if you are unable to afford an attorney. In a criminal case, a defendant who is unable to afford an attorney has the right to court-appointed counsel if the offense charged requires on conviction a minimum term in jail, or the court determines that it might sentence the defendant to jail. You should ask the court if you qualify for court-appointed counsel.

You will have a right to receive certain types of “discovery” from the prosecutor. If you are charged with a felony, you will have a right to see your police report, test results, and other documents or other items that could ultimately be used as exhibits or “proofs” at a trial. For more information on “discovery,” click here.

cuffs bwBail and Types of Bonds

A person, called a defendant, who is arrested for breaking a criminal law, may be held until a bail amount is set or an arraignment is held by a judge or magistrate. Posting a bond is a promise that the defendant will appear in court when required and will refrain from any activity the judge or magistrate orders.

The four types of bonds are a personal recognizance bond, a cash bond, a ten-percent bond, and a surety bond. They are explained below:

• When the court sets a personal recognizance bond, the defendant is released after making a promise to return to court when required. No money is paid.

• A cash bond is a money guarantee that the defendant will return to court when required. When a cash bond is set, the defendant must pay the full bail amount to the court before being released from jail.

• Another type of bond is a ten-percent bond. In this bond, the court will accept payment of ten percent of the full bail amount as a guarantee that the defendant will appear as required. If the defendant does not appear, the court will require payment of the remaining ninety percent.

• The last type of bond is a surety bond. A surety bond is a promise made by an approved bondsman that the defendant will appear as required. A bondsman must prove to the court that he or she has sufficient financial resources to pay the full bail amount if the defendant does not appear as required.

Money or property that is posted for a bond might not be returned when the case is over. The court may apply cash and ten percent bond money posted by the defendant to pay any outstanding court fines, costs, or other assessmentss.

Regardless of the type of bond, if the defendant does not return to court as promised, the court will issue an arrest warrant and the bond money will be forfeited. In addition, the defendant may be held responsible for paying the remaining unpaid bail amount. For additional information, please visit here:

Processing Felony Cases

If you are accused of committing a felony, a preliminary examination must be conducted by the district court in the county where the crime took place within 14 days of the arraignment. If the district judge determines there is enough evidence, the case will be transferred to circuit court for trial.

At the circuit court level, another arraignment is held, unless it is waived by your attorney. If you are not represented by an attorney, you may not waive the arraignment. You will enter a plea of guilty or not guilty, or you may stand mute. After the arraignment, a trial date will be set. The time between arraignment and trial is used to prepare for trial. Often, the prosecutor and the defendant will make a plea agreement.

After conviction at the trial or as the result of a plea agreement, the court will schedule a date for sentencing unless you are found not guilty or the case is otherwise dismissed.

At the sentencing hearing, the judge will order the penalties for conviction.

prisonPenalties for Felony Cases

If the court finds you guilty of a criminal offense, you may have to pay a fine, court costs, and other assessments and you may have to spend time in jail or prison. Depending on the crime, a conviction for a felony can result in a sentence of up to life in prison.

Probation and Parole

Your sentence may include probation. Probation allows you to live in the community as long as you follow certain rules set by the court. If any of the rules are violated, a warrant for your arrest may be issued and the judge may re-sentence you. As an example of a probationary sentence, the judge may decide that so long as you are not arrested again and regularly meet with your probation officer, you may not have to serve a jail or prison sentence.

Parole is a conditional release from prison. You may not be released from prison before your minimum term has been completed. The court will set conditions that you must follow, or you may be returned to prison.

MISDEMEANOR CASES

Some of the more common traffic and nontraffic misdemeanor cases are assault and battery, vandalism, shoplifting, trespassing, prostitution, disorderly conduct, reckless driving, and first or second drunk driving offenses. They are usually handled by the district court closest to where the crime occurred.

What Happens If You are Arrested?

If you have been arrested for breaking a criminal law and a ticket is not issued, you will be promptly taken to the district court for an arraignment. You will be held by the police or sheriff until a bond is set and/or the arraignment takes place. The arresting police department will know where and when the arraignment will take place.

The arraignment is held before a district court judge or magistrate. At the arraignment, the judge or magistrate will explain to you (the defendant) the charges, your constitutional rights, and the possible consequences if you plead guilty or are convicted after trial of the charge. You will enter a plea of guilty or not guilty, or you may stand mute. If bond was not previously set, the court will determine whether you can be released on bond and, if so, will set the bail amount and collect the bail.

The court may appoint an attorney to represent you if you are unable to afford an attorney. In a criminal case, a defendant who is unable to afford an attorney has the right to court-appointed counsel if the offense charged requires on conviction a minimum term in jail, or the court determines that it might sentence the defendant to jail. If you do not plan to hire your own attorney, you should ask the court if you qualify for court-appointed counsel.

If you have been stopped for drinking and driving, you may be charged with one of three misdemeanor offenses. The first is operating while intoxicated, the second offense is operating while visibly impaired, and the third offense is operating with any alcohol content in the body (applies only to persons under 21 years of age). You may also be charged with operating under the influence of drugs. There are also felony offenses involving drunk driving, including operating while intoxicated or operating while visibly impaired causing death or serious injury, and child endangerment.

If you are a Michigan resident and are arrested for drinking and driving, the law enforcement officer will take and destroy your driver’s license. The officer will provide you with a temporary Michigan driving permit until your case is resolved.

If you are stopped for drinking and driving by a law enforcement officer, you may be asked to take a breath test while on the road. This breath test is called a PBT or a preliminary breath test. If you refuse to take the PBT, a civil infraction ticket may be issued for refusing to take the breath test.

You will be taken to a police department to take a breathalyzer test. If you refuse, your driver’s license may be suspended.

What if you are issued a Misdemeanor Ticket Instead of Getting Arrested?

If you have received a ticket, follow the directions on the ticket. It is important to read both sides of the ticket. The ticket will state your rights and tell you what you need to do to respond to the ticket, including how and where to appear. You can dispute the ticket at a trial. To request a trial you must do what it says on the back of the ticket.

If you are under the age of 17 and have received a misdemeanor traffic ticket, you must appear at the court specified on the ticket, which may be either the district court or the family division of the circuit court. You will be notified to appear for a preliminary hearing. At the preliminary hearing, you will plead guilty, not guilty, or you may stand mute and be notified of the next hearing date. Your parents or legal guardian should be present during all proceedings. If you fail to appear for the hearing, an order may be issued to the police to bring you to court.

If you are 17 years of age or older and have received a misdemeanor ticket, you are usually required to go to court for an arraignment. If you plead not guilty or stand mute, you will be scheduled for a pretrial conference with the prosecutor. You may have an attorney represent you at the pretrial conference. If you cannot resolve the ticket at the pretrial conference, you may have a trial before a judge or jury. If you do not appear in court when scheduled to do so, a warrant will be issued for your arrest.

Processing Misdemeanor Cases

Traffic and nontraffic misdemeanor tickets are filed in court by the law enforcement officer who issued the tickets and complaints are filed by the prosecutor. It is your responsibility to respond to the ticket or an order to appear.

If a hearing is required, you may be represented by an attorney and have a right to a trial by a judge or jury. You may want to talk to an attorney prior to your hearing. The prosecutor or city attorney must prove that you are guilty.

Penalties for Misdemeanors

If convicted of a misdemeanor, you may be sentenced to jail.

If you are 17 years of age or older and are convicted of a traffic misdemeanor, you may be required to pay a fine and costs. Points will be added to your driving record by the Secretary of State, and some convictions may result in jail sentences. You may also be ordered to attend counseling, a driver safety course, or other program.

If you are under 17 years of age and found responsible for a traffic misdemeanor, you may be put on probation, be sent to a driver improvement course, and points will be added to your driving record. If a hearing is required, you may be represented by an attorney and have a right to a trial by a judge or jury. The prosecutor must prove that you are guilty.

If you are 17 years of age or older and have been convicted of an offense, your sentence may include probation. Probation allows you to live in the community as long as you follow certain rules set by the court. If any of the rules are violated, a warrant for your arrest may be issued and the judge may re-sentence you. As an example of a probationary sentence, the judge may decide that so long as you are not arrested again, and regularly meet with your probation officer, you may not have to serve a jail or prison sentence.

Points are added to your driving record by the Secretary of State as required by law if you are found guilty of most traffic misdemeanors. The court does not assign points and cannot dismiss or waive them. Many convictions will result in additional fees assessed by the Secretary of State, ranging from $50.00 to $1,000.00 for each year the points remain on the driving record. These fees, payable to the Secretary of State, are in addition to fines and costs assessed by the court.

Points remain on a driver’s record for two years from the date of the finding of responsibility or conviction, and the offense appears on the driving record for seven to ten years depending upon the type of offense. Convictions and accidents may also affect car insurance rates.

Depending on the offense, or if a person gets too many points, the Secretary of State may put the driver on probation or suspend or revoke his or her license.

If you want to find out the number of points on your driving record, call 517-322-1460. You cannot obtain this information about another person’s driving record.

If you want to obtain a copy of your driving record, contact your local Secretary of State branch office. There may be a charge for this service and it may take up to four weeks. If you are in the Lansing area, you can obtain a copy of your driving record at the Secretary of State office located at 7064 Crowner Drive, Lansing, Michigan.

Our Services:

At Crowley, Cornish, Rockafellow & Sartz, PLLC, we assist clients with matters ranging from civil infractions to capitol-level felony charges. We also help people get their licenses back through the Department of State. In particular, our attorneys have a lot of experience with drug and traffic offenses.

We fight hard for our clients. For a free initial consultation, please call (517) 507-5077. Our experienced attorneys are available to assist you with your legal needs.

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