Category Archives: Criminal Law

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.

Latest News: Client acquitted of Domestic Violence Charges after Jury Trial

Another win for Crowley, Cornish, Rockafellow & Sartz, PLLC.

Attorney Stephen Cornish successfully defended a client from allegations of Domestic Violence, First Offense, before a jury in Eaton County, Michigan. After a thoroughly contested case, the jury’s verdict was not guilty on all charges.

 

For more information on Domestic Violence allegations, 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 you are encouraged you to 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.

How to obtain a Personal Protection Order or PPO in Michigan

How to obtain a Personal Protection Order or PPO in Michigan

A PPO is an order that is signed by a judge that enjoins or prevents the respondent or the person that receive the PPO against them from domestic abuse or stalking. There are two types of Personal Protection Orders in Michigan. Before you request a PPO, you need to first figure out if you need a domestic relationship PPO or a nondomestic / stalking PPO. While you can obtain and contest a PPO without an attorney it is highly recommended that you retain an attorney to help you through this complicated process. Feel free to contact our office today to set up a free consultation on any of our practice areas.

First you must determine what type of PPO you need

The first kind, the Domestic Relationship PPO is available to protect a petitioner who is in a domestic relationship from domestic abuse (do not be confused as this type can also include stalking!) A Domestic relationship in Michigan is defined by MCL 600.2950(1):

A domestic relationship PPO is available to restrain the following

  • Petitioner’s spouse or former spouse.
  • A person with whom the petitioner has a child in common.
  • A person who resides or has resided in the same household as petitioner.
  • A person with whom the petitioner has or has had a “dating relationship.”

Dating relationship is defined as a “frequent, intimate associations primarily characterized by the expectation of affection. MCL 600.2950(30)(a). If the parties are or were in a domestic relationship as defined above then a domestic relationship PPO should be used, even if the domestic abuse constitutes stalking.

The second type of PPO is the nondomestic relationship PPO and this type of PPO is available to restrain anyone who is engaging in stalking, aggravated stalking, or even cyber bullying; or has been convicted of sexually assaulting the petitioner or of furnishing obscene material to the petitioner; or has threatened the petitioner with, or subjected him or her to, a sexual assault. MCL 600.2950a. You do not need any particular relationship to receive a nondomestic stalking PPO against someone. It could even be a stranger.

Please note that that there are special procedures when minors are involved on either side of the PPO. It is highly recommended that you consult with an attorney.

Obtain the appropriate petition and order forms for the type of PPO you need to file

  • For a domestic relationship PPO, you will need a Petition for Personal Protection Order (Domestic Relationship) (CC 375), and the accompanying Order (CC 376).
  • For a domestic relationship PPO against a minor, you will need a Petition for Personal Protection Order Against a Minor (Domestic Relationship) (CC 375M) and the accompanying Order (CC 376M).
  • For a nondomestic stalking PPO, you will need a Petition for Personal Protection Order Against Stalking (Non Domestic) (CC 377) and the accompanying Order (CC 380).
  • For a nondomestic stalking PPO against a minor, you will need a Petition for Personal Protection Order Against Stalking by a Minor (Non Domestic) (CC 377M) and the accompanying Order (CC 380M).

Is it an emergency? Then request an ex parte PPO

If you (the petitioner) are in immediate danger, you may request what is known as an ex-parte PPO. This PPO will take effect immediately, without a hearing and without advance notice to the other party. To obtain a PPO ex-parte, you must show the judge that “immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice” or “the notice will itself precipitate adverse action before a personal protection order can be issued.” MCL 600.2950(12), .2950a(12). If it is not an emergency or the court declines to grant the PPO ex-parte, a hearing must take place before the PPO will be issued.

Filling out the Forms

The required contents of the petition are set forth in MCR 3.703(B), and (D). The required contents of the order are set forth in MCL 600.2950(11) and .2950a(11). You will always want to use the standardized SCAO forms, as they fully comply with all these statutory requirements.

The following information will be required to accurately and completely fill out the forms, thereby improving the chances of obtaining an ex parte PPO:

  • The complete name, address, and physical description of the respondent.
  • The name, date of birth, Social Security number, and current address of any children in common.
  • Any prior lawsuits between the parties.
  • A detailed description of the factual events giving rise to the need for a PPO. It is strongly recommended that the events be listed in chronological order with the most recent event being put first followed by the next most recent and so on. Exact dates, times, and locations are not necessary but are extremely important.
  • Police reports, emergency room reports, photographs, tape recordings, reports from social service agencies, and witness affidavits. Although such evidence is not necessary or required by statute, if you have it, bring it and make the court aware of its existence.

You should also identify the particular conduct you want to have stopped, for example if you want the respondent to stop coming within a certain physical distance to you or making phone contact or letter writing.

Filing the Paperwork in the Correct Court

There is no fee for filing a PPO petition and no summons is issued

To file the paperwork, you will go to your local circuit court. The Statute requires you file it the family division, however, in most courthouses in Michigan the Circuit Court Family Division Clerk’s Office is the same office as the Circuit Court Clerk’s Office. If you attempt to file your paperwork in the Circuit Court Clerk’s Office, and it is refused, they will be able to tell you where the family division Clerk’s office is located. Please note that if the respondent is an adult, you can file in any county in Michigan, regardless of where the parties reside. MCR 3.703(E)(1). If the respondent is under age 18, venue is proper only in the county where the petitioner resides or in the county where the respondent resides. If the respondent does not live in Michigan, venue is proper in the petitioner’s county only. MCL 712A.2(h); MCR 3.703(E)(2).

Please note that according to Michigan’s One Judge / One Family Doctrine if there are other pending or prior actions affecting the parties, for example a prior divorce action, or prior PPO, or paternity, or prior criminal cases involving the respondent, the PPO should be sought in that county. MCR 3.703(D).

If you are requesting Ex-Parte Order, you will have to take the petition and order to the judge assigned to get their approval

After you have filed the petition, you will take the petition, order, and intermediary’s recommendation, if there is one, to the judge, who will determine if there eminent harm exists and is sufficient to grant an ex parte PPO. The judge has 24 hours from the filing of the petition to make this determination according to MCR 3.705(A)(1). If the judge signs the ex-parte PPO, you will need to go to the court clerk’s office to get your copies and arrange for the PPO to be served upon the respondent.

You cannot serve the respondent yourself, but any other adult can serve the PPO upon the respondent for you as long as they are willing to sign the proof of service in front of a notary. A PPO is effective and enforceable upon a judge’s signature without written or oral notice to the respondent, so that failure to make service does not affect the PPO’s validity or effectiveness. MCR 3.705(A)(4), .706(D). However, if the respondent is not served a copy of the PPO it is unlikely that you will be able to enforce it against them for any violations of the PPO.

Once the respondent is served, you need to go to the court clerk’s office and file a proof of service. The proof of service forms are located on the back sides of the petition and PPO forms. Please note it must be signed by the person that served the PPO in front of a notary.

Having a hearing instead of a Ex Parte

If the judge denies the petition for ex parte relief the judge will tell you in writing why it was denied. Further, the court will advise you that you are entitled to a hearing on the PPO to have it entered by hearing (instead of ex parte). The court will schedule you a hearing if you request one. (You may need to contact the court’s docketing clerk to get a date.) If you fail to request a hearing within 21 days of entry of the court’s order denying the request for an ex parte PPO becomes the court’s order is final and the PPO is then denied. MCR 3.705(A)(5).

Finally, there is always the possibility that the grounds you stated fail on their face to allow for a PPO to be issued, ex parte or otherwise. If the court “determines after interviewing the petitioner that the claims are sufficiently without merit that the action should be dismissed without a hearing,” then the court will simply deny your PPO request without a hearing. MCR 3.705(B)(1).

If the court schedules a hearing, you will need to make sure that the respondent is served a copy of not only the petition but also the notice to appear or notice of hearing on the petition for the PPO. You can find a notice of hearing form on the SCAO site as form # CC 381. This notice of hearing must be served personally on the respondent and be done at least one day before the hearing for PPOs that fall under MCL 600.2950 or .2950a(1). MCR 3.705(B)(2). For PPOs under MCL 600.2950a(2), service may be made two days before the hearing. MCR 3.705(B)(2). You may not do the service yourself. Service must be made by a legally competent adult who is not a party to the action. MCR 2.103(A).

Having a hearing to enter the PPO

All PPO hearings are held on the record. If you fail to appear at the hearing the court is likely to dismiss the PPO, however, there is also the possibility that the court could adjourn it to a new date. Do not count on the court adjourning the hearing. Always appear in court when scheduled, in proper attire, and on time.

If the respondent fails to appear, you will need to be able to prove that you gave the respondent notice of the PPO and notice of the hearing date, in the form of a Proof of Service as discussed previously. The court rules in Michigan do allow for a Court to enter a PPO after a hearing when the respondent fails to appear based upon the court determining that you made diligent attempts to serve the respondent, however, most court will require actual service. MCR 3.705(B)(5).

Call 911 if respondent violates the PPO

A PPO is effective and immediately enforceable upon a judge’s signature, without written or oral notice to the respondent, and before entry into the LEIN system. MCL 600.2950(9), (12), (18), .2950a(9), (12), (18). If the respondent violates the terms of the PPO, call 911. Always keep an extra copy of the PPO to show to the police in case the PPO has not been put into the police computers yet or there is some error in their system.

If the respondent is found to have violated any of the terms of the PPO they will be subject to arrest and to the civil and criminal contempt powers of the court, which may include imprisonment up to 93 days and/or a fine up to $500. MCL 600.2950(23), .2950a(23); MCR 3.708(H)(5)(a).

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 Michigan divorces, click here.

For information on Michigan Domestic Violence charges, click here.

Using these materials is not a substitute for the attorney’s independent judgment, drafting, and research. Again it is highly recommended you contact Crowley, Cornish, Rockafellow, & Sartz, PLLC for a free consultation on this or any of our other practice areas before proceeding in court as an in pro per.

 

Yes, thanks to Michigan’s Court Rules, you will get a copy of your police report

When you are a Criminal Defense attorney, police reports are a big deal. They are very important documents. While they are, in my opinion, not always accurate and they obviously come from a biased source, having access to police reports is essential. They are useful in so many different ways. These reports contain the blue-print for a prosecutor’s case. Additionally, they help us find other potential issues which may need further examination through discovery requests. How do we get access to police reports? The answer is found in Michigan’s court-rules and laws.

 

Criminal law, in some ways, is more “civil” than civil law. The goals are very different. In some aspects, in my opinion, the rules are fairer.  Prosecutors, if I ask them to, have to give me certain stuff and I have the option to ask for a court-order if they do not. Prosecutors do not have the option to bury me with huge interrogatory requests or ambush me with short-notice depositions. They cannot, unless it’s an usual circumstance, force my client to answer questions prior to trial. Further, prosecutors are required to turn over key chunks of their case to defense counsel upon request. This is all possible because of the discovery rules for criminal cases under Michigan law.

 

Discovery, broadly stated, is the process whereby the parties in both civil and criminal cases allow the respective sides to examine their potential evidence, take witness testimony, ask for documents, see potential exhibits, examine video/audio evidence, or other steps to examine their respective cases. The Michigan Court Rules and laws contain guidelines for appropriate steps and procedures. Ultimately, the presiding judge, subject to potential appellate review, has the final say over these matters.

 

With criminal cases under Michigan law and court-rules, discovery is different, depending on the type and severity of the charge. The court rules and applicable statutes explicitly require both the prosecutor and defense to turn over certain types of information, especially with felony charges. This is in stark contrast to civil cases. With civil cases, judges generally have much more discretion and may even prohibit discovery unless they  grant a court-order (district court civil-litigation, for example) to start the process.

 

With felony charges, prosecutors are required to turn over certain types of information to the defense, if requested to do so, as required pursuant to sub-chapter 6.200 et. al. of the Michigan Court Rules. In particular, MCR 6.201(A) requires that the prosecutor, among other things, turn over witness lists, witness statements, the curriculum vitae of all expert witnesses, and this rule requires that the prosecutor allow the defense to inspect “any tangible physical evidence that the party may introduce at trial.” MCR 6.201(A)(6).

 

MCR 6.201(B) is key rule because it requires a prosecutor to provide “any exculpatory information or evidence known to the prosecuting attorney,”MCR 6.201(B)(1). It also all police reports, written or recorded statements, regardless of whether the person testifies, of the defendant, co-defendant, or accomplice relating to a case, copies of warrants, and copies of any agreements related to the procurement of potential testimony in the case. This particular rule is absolutely vital. MCR 6.201(B)(2-5).

 

Discovery is also reciprocal. MCL 767.94a requires that the defense turnover certain types of potential evidence to the prosecutor as well.

 

There are limits to discovery. MCR 6.201(C) lists some of the restrictions and the rest of the court-rules under this sub-chapter deal with the procedures to resolve any disputes over discovery. Some information, for example, may be redacted or protected by court-order, there are certain time-frames involved, and other considerations as well. MCR 6.201(D & E, et. al).

 

With misdemeanor charges, though, discovery is not as clearly and explicitly defined. Most prosecutors will turn over essentially the same documents as they would for a felony charge; however, some courts request a properly filed motion by the defense first. Regardless of the charge, defense counsel usually needs to file a formal request with the prosecutor to receive discovery.

 

This “request” usually is made through a “discovery demand” often filed when defense counsel files an appearance on behalf of an alleged defendant in a pending criminal case. However, either the prosecution or defense may file additional motions requesting discovery as the case proceeds and ask for a court-order. MCR 6.201(D & E, et. al).

 

These mandatory discovery requirements, especially the provision requiring prosecutors to turn over exculpatory evidence, are essential for the criminal justice system. When prosecutors fail to turn over exculpatory evidence, the odds of a wrongful conviction may rise exponentially.

It is not a perfect system, of course. There have been tragic examples of situations where prosecutors failed to disclose exculpatory evidence, defense attorneys played games with discovery, or other various types abuses. Gamesmanship with discovery is certainly not dead.

However, Michigan, at least, has rules that put the emphasis on the prosecutor to level the playing field a little bit.

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 more information on Michigan criminal law, 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.

 

OUI’s and Owner Responsibility…Pick your Designated Driver wisely….

**Hypoth148138443_4e3998a4cd_zetically, a group of friends, including the owner of a vehicle, decide to go out and enjoy an evening at a nice restaurant followed by a trip to their local, favorite bar for a few drinks. These friends make a smart choice; they pick a designated driver. Unfortunately, this “designated driver” could not resist the temptation of a few cold ones and a glass of wine prior to driving home.*
Could the owner of the vehicle be held responsible if the selected designated driver gets charged with operating the vehicle while intoxicated or impaired?
The answer is yes, absolutely. Under Michigan law, while the actual operator’s potential charges may be serious, the owner/controller of the vehicle who “knowingly permits” or “knowingly authorizes” 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 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).

Possible jail and fines are only a few of the potential sanctions if convicted. MCL 257.625 (10) lists only some of the possible sanctions, monetary and otherwise, if person is convicted.
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.

Further, if there is evidence that the group of friends had selected the driver in advance, it would be challenging to claim that the hypothetical designated driver was driving the vehicle without the owner’s permission.

The bottom line is very straightforward; pick your designated driver carefully if you want someone to drive your vehicle for a night out. If the “designated driver” may want to partake and will struggle with refusing alcoholic beverages, it may be time to pick someone else. Otherwise, the owner/controller of the vehicle may be charged criminally if they “knowingly authorize or permit” their intoxicated or impaired driver gets charged. Of course, taking a cab or using alternative modes transportation may help avoid these issues.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077. Drive safely.file000244831962
*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.

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 more information on other traffic offenses, such as Operating While Intoxicated, click here.
For information on additional Michigan Traffic offenses such as operating on a suspended/revoked/denied license, 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.

 

 

Expunging a crime in Michigan under the new amended law

*These laws have recently changed…see MCL 780.621.

1. What Types of Crimes are Eligible?

*The most recently amended law, MCL 780.621 will make a significantly larger percentage of people with prior convictions eligible. Currently, the amended version is the process of being codified.

Notably, this law altered and amended the language regarding minor misdemeanor offenses. This will make it easier for people with multiple misdemeanor convictions, as long as they meet the rest of their eligibility criteria, to potentially get them expunged.

Section (a) notes;

(a) A person who is convicted of not more than 1 felony offense and not more than 2 misdemeanor offenses may petition the convicting court to set aside the felony offense.” See House Bill No. 4186, entered as PA 463 of 2014 (1).

Please, note, however, a significant percentage of misdemeanors and felonies are still excluded from being expunged. Traffic offenses, for example, are still excluded; meaning no, it is not possible under this law to get an OUI/OWI conviction set-aside. See PA 463 of 2014 (3)(d).

However, it substantially increases the number of potential applicants because it altered the language regarding minor offenses and it permits more people now with multiple convictions of misdemeanors to potentially apply.

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2. How does the process work?

Assuming a person meets the eligibility criteria, any effort to expunge an offense cannot commence until five years after the date of conviction. The process starts with an application, preferably with an affidavit and certified copy of the original conviction. The applicable statute and application contains more detail. Applications may need to be notarized and potentially witnessed as well, depending on the materials.

Next, you will be required to submit a fingerprinting card and a background check. Out-of-state convictions count. It is vital to make sure there is nothing out-of-state that could show up during this background check. Lastly, applicants will need to schedule a hearing and appear before a judge to convince the judge that they are worthy of having the offense expunged in order to complete the process. The process usually takes several months.

3. Potential Obstacles

There are numerous potential obstacles along the way. There are no guarantees; even if an application is properly filled out and a person’s background is clear.

Some judges closely scrutinize prospective applicants and are hard to convince. Judges often reject prospective applicants for several reasons. Red flags include whether an applicant had later contacts with police, if they were charged with any new offenses but acquitted, whether the prospective applicant had aggressive interactions with law enforcement during the original charge, or many other potential factors.

If a person served a term of probation and if they had problems with their probation officer, that could be a red flag. Probation officers may be a powerful ally if there was a good relationship, but a probation officer would also have an influential voice if things did not go well.

Further, if a victim in the original offense had especially strong feelings regarding the conduct, that could be an issue. Judges and Prosecutors will solicit and value the opinion of the “victim” of the offense.

The prosecuting attorney may also have objections. The Prosecutor’s office, as well as the Attorney General’s office, potentially, will have a say and a chance to express their views on the issue.

Basically, a judge will closely scrutinize how the prospective applicant lived their life since the conviction. Judges will receive information from a variety of parties, and not all of that information may be favorable depending upon the alleged circumstances.

4. Finishing Steps

If an applicant is successful during their hearing, the presiding judge will grant an order expunging the conviction. If the applicant files the appropriate paperwork with a copy of that order, the police will then potentially destroy any fingerprints on file from the original case. An expunged offense should be off a person’s public record. However, there may be traces of the proceedings still in court-files or other locations. Further, law enforcement officials and court-officers may still have some access or awareness of the prior conviction. However, removing it from the public record will make it very difficult to find, especially if a person follows up with the police and gets their fingerprints destroyed. While it may take some work, expunging a past criminal conviction is worth the effort. However, it takes work, organization, and a willingness to put the time into the process.

This new law substantially increases the number of people who may now be eligible. If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

OUI’s…still no relief under the Amended Laws to expunge prior Convictions…

No relief for Traffic Offenses under the new, Amended Laws to expunge prior Convictions…

There has been a lot in the news recently about changes to the expungement laws in Michigan. It was a significant step by the Legislature. The new amendments offer hope for people convicted of certain types of offenses, notably drug convictions. More importantly, people with multiple counts of certain types of offenses may also be eligible for the first time. …see MCL 780.621, amended Am. 2014, Act 335, Eff. Jan. 14, 2015; See also House Bill No. 4186, entered as PA 463 of 2014, in the process of being codified.

Unfortunately, however, for people convicted of certain of offenses under Michigan law, notably traffic offenses, the traditional routes to seal and expunge convictions will still not be available.

Under the new amended Michigan law, the expungment statute, …see MCL 780.621, amended Am. 2014, Act 335, Eff. Jan. 14, 2015; See also House Bill No. 4186, entered as PA 463 of 2014, in the process of being codified., under section (3)(d) excludes traffic offenses, meaning convictions for offenses prosecuted under the motor-vehicle code cannot usually be expunged. See also MCL 780.621a (1a)(b)( “Traffic offense” means a violation of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, or a local ordinance substantially corresponding to that act, which violation involves the operation of a vehicle and at the time of the violation is a felony or misdemeanor.).

While traffic charges and convictions may be set-aside, dismissed, dropped, or sealed for other reasons (appeals, juvenile-offender status, court-order, not-guilty verdicts, nolle-prosequi orders, etc.), it is a much more difficult process to attempt to seal or set-aside a conviction because these types of charges have been excluded from Michigan’s expungment law, MCL 780.621. For example, according to the Michigan Court of Appeals, data in 2012, only around 21.5% of all criminal appeals resulted in either partial or full vacate/remand; meaning across all criminal-law related appeals, in 78.5% of the cases filed, the Court of Appeals affirmed a prior ruling or decision by the lower court. Again, these numbers reflect all criminal-offense related appeals to the Court-of-Appeals. It is safe to surmise that the odds of a person successfully appealing an OUI conviction to either a circuit court from district court, or to the Court of Appeals from a circuit court, are even less than the 21.5 percent.

The longevity of a possible conviction should be a consideration if a person is charged with an OUI/OWI. The collateral ramifications for this type of conviction will linger for a long period of time. There is no direct way to remove a prior conviction currently under the expungment law.

These new amendments will potentially allow a significant percentage of new people with prior convictions to have their convictions set-aside; however, it offers no relief for people convicted of offenses that would be classified as “traffic offenses.”

We represent clients throughout Michigan on traffic offenses and all types of criminal charges and appeals. For a free initial consultation, please call our Lansing office at (517) 507-5077.

For more information on other traffic offenses, such as Operating While Intoxicated, click here.

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

For information on expunging prior non-traffic convictions, click here. 

Retail Fraud, First Degree

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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.

The following is a series of posts on various types of criminal charges. This series of posts will start with what are commonly known as “theft offenses.”

Loss and theft prevention is a big issue for retailers. Stores, especially larger chains, often have advanced surveillance, loss-prevention employees, and train their staff in techniques designed to deter or minimize losses from theft. However, even with all of these measures, theft offenses still cost larger retailers millions of dollars in losses and these cases still comprise a significant portion of a local court’s misdemeanor docket.
“Retail Fraud, First Degree”, MCL 750.356 (3) & MCL 750.356c, a felony charge, is the most severe offense out of the “retail fraud charges,” and carries significantly more sanctions for conviction than retail fraud second or third degree, MCL 750.356 (4) & (5) and MCL 750.356d. It is often charged against people who allegedly “shop-lift” merchandise from merchants and retailers when the value of the allegedly stolen merchandise has a value over $1,000.00.

If the accused individual already has a prior conviction for retail fraud second degree, MCL 750.356 (4); MCL 750.356d, they may be charged with retail fraud first degree even if the value is between $200.00 and $1000.00 pursuant to MCL 750.356c (2).

The maximum possible penalties for a conviction may include “imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine.” MCL 750.356c (2). Further, since it is a felony charge, a convicted individual could also face up to five years of probation as well or other sanctions at the court’s discretion.

In general terms, retail fraud first-degree is the most severe of the “retail fraud” charges. It is also considered a “crime against dishonesty.” As with any theft offense, and as with any felony, there are collateral consequences that go well beyond the courts if a person is convicted of this charge.

As noted in the Michigan Rules of Evidence, convictions involving a “crime against dishonesty” may be used against someone by an opposing lawyer if they ever testify in another court-proceeding to attack their credibility.

A conviction for this type of charge, for example, may also impact a person’s ability to find work in certain fields. A lot of employers, especially those professions involving the financial industry, may be deeply concerned about an applicant or employee if they have this type of conviction on their record.

Since it is felony charge, a felony conviction would impact a person in ways beyond what is listed here. For a list of the additional potential sanctions, please visit the Michigan Department of Civil Rights and their website, which has an informative article on the lost privileges of convicted felons.

If convicted, as a felony, it could stay on a person’s record for a long period of time.

However, certain people, especially younger alleged offenders between the ages of 17-20 who are interested in potentially pleading guilty may be eligible for diversionary programs such the Holmes Youthful Trainee Act (see MCL 762.11-762.16), which, if completed, could keep a conviction from being entered in their public record. Diversionary programs often require probation and generally need to be negotiated through the plea-bargaining process prior to any trials.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For information on the Michigan charge, “Uttering & Publishing,” click here.

For information on Michigan’s embezzlement charge, click here.

For information on the less severe, misdemeanor charge called, under Michigan law, Retail Fraud, Second Degree, click here.
For information on the less severe, misdemeanor charge called, under Michigan law, Retail Fraud, Third Degree, click here.

Retail Fraud, Second Degree

Loss and theft prevention is a big issue for retailers. Stores, especially larger chains, often have advanced surveillance, loss-prevention employees, and train their staff in techniques designed to deter or minimize losses from theft. However, even with all of these measures, theft offenses still cost larger retailers millions of dollars in losses and these cases still comprise a significant portion of a local court’s misdemeanor docket.

“Retail Fraud, Second Degree”,MCL 750.356 (4),MCL 750.356d (1)(b) is more severe offense than retail fraud third degree, MCL 750.356 (5), MCL 750.356d (4), and is often charged against people who allegedly “shop-lift” merchandise from merchants and retailers when the value of the allegedly stolen merchandise has a value over $200.00 and less than $1,000.00.

If the accused individual already has a prior conviction for retail fraud third degree, MCL 750.356 (5), they may be charged with retail fraud second degree even if the value is under $200.00 pursuant to MCL 750.356d (4); MCL 750.356 (4)(b).

Retail fraud, second degree a misdemeanor punishable upon conviction by “imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the value of the property stolen, whichever is greater, or both imprisonment and a fine,” MCL 750.356 (4), costs, restitution, probation up to two years, or other sanctions at the court’s discretion.

In general terms, this particular charge, MCL 750.356 (4), MCL 750.356d (1)(b) carries significantly greater sanctions for a conviction than a retail fraud third degree. However, it is not as severe as some of the other theft offenses which will be discussed in later posts because it is still a considered a misdemeanor. It is also considered a “crime against dishonesty.” As with any theft offense, there are collateral consequences that go well beyond the courts if a person is convicted of this charge.

As noted in the Michigan Rules of Evidence, convictions involving a “crime against dishonesty” may be used against someone by an opposing party if they ever testify in another court-proceeding to attack their credibility.

A conviction for this type of charge, for example, may also impact a person’s ability to find work in certain fields. A lot of employers, especially those professions involving the financial industry, may be deeply concerned about an applicant or employee if they have this type of conviction on their record.

If convicted, as a misdemeanor, it could stay on a person’s record for a long period of time.

However, certain people, especially younger alleged offenders between the ages of 17-20 who are interested in potentially pleading guilty may be eligible for diversionary programs such the Holmes Youthful Trainee Act (see MCL 762.11-762.16), which, if completed, could keep a conviction from being entered in their public record. Diversionary programs often require probation and generally need to be negotiated through the plea-bargaining process prior to any trials.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

Retail Fraud, Third Degree

Loss and theft prevention is a big issue for retailers. Stores, especially larger chains, often have advanced surveillance, loss-prevention employees, and train their staff in techniques designed to deter or minimize losses from theft. However, even with all of these measures, theft offenses still cost larger retailers millions of dollars in losses and these cases still comprise a significant portion of a local court’s misdemeanor docket.

“Retail Fraud, Third Degree”, MCL 750.356 (5), MCL 750.356d (4) is often charged against people who allegedly “shop-lift” merchandise from merchants and retailers when the value of the allegedly stolen merchandise is under $200.00. This offense may also be charged as some variation based on a local municipal ordinance; however, the possible maximum punishments are often similar.

This is a misdemeanor punishable upon conviction by up to ninety-three days in jail, “a fine of not more than $500.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater,” MCL 750.356 (5), MCL 750.356d (4) costs, restitution, probation up to two years, or other sanctions at the court’s discretion.

In general terms, this particular charge, MCL 750.356 (5), MCL 750.356d (4) is the least severe of the theft offenses that will be discussed in later posts. However, it is considered a “crime against dishonesty,” and as a theft offense, there are collateral consequences that go well beyond the courts if a person is convicted of this charge.

As noted in the Michigan Rules of Evidence, convictions involving a “crime against dishonesty,” may be used against someone by an opposing lawyer if they ever testify in another court-proceeding to attack their credibility.

A conviction for this type of charge, for example, may also impact a person’s ability to find work in certain fields. A lot of employers, especially those professions involving the financial industry, may be deeply concerned about an applicant or employee if they have this type of conviction on their record.

If convicted, as a misdemeanor, it could stay on a person’s record for a long period of time.

However, certain people, especially younger alleged offenders between the ages of 17-20 who are interested in potentially pleading guilty may be eligible for diversionary programs such the Holmes Youthful Trainee Act (see MCL 762.11-762.16), which, if completed, could keep a conviction from being entered in their public record. Diversionary programs often require probation and generally need to be negotiated through the plea-bargaining process prior to any trials.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

 

 

 

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