Showing posts with label criminal defense attorney. Show all posts
Showing posts with label criminal defense attorney. Show all posts

Wednesday, August 12, 2015

Landmark Decision Reverses Course For Michigan’s Sentencing Guidelines in Criminal Felony and High Misdemeanor Cases

Daniel Williams, Esq.

On Wednesday, the Court issued an opinion in People v. Lockridge, a link to which is attached above, which dismantles the way that convicted felons in Michigan have been sentenced since the “truth in sentencing” laws went into effect on January 1, 1999. The legislature enacted mandatory sentencing guidelines, which amount to a scoring equation, and based on the offender’s prior criminal record and the facts and circumstances of the case, a mandatory minimum sentence could be determined.

The sentencing Court was bound by that number, unless they could come up with “substantial and compelling reasons” to depart, either above (more time) or below (less time) than what the mandatory sentence under the guidelines scoring required.  The Court defined what substantial and compelling reasons meant in People v. Babcock, indicating that the Court could only depart upward or downward where evidence not taken into account by the sentencing guidelines was available to the Court.

The sentencing guidelines, however, could be scored based on the lower threshold of a preponderance of the evidence, and it was not required that the Defendant be found guilty of the offense for the sentencing guidelines to apply. 

In Lockridge, the Court has done away with all of that.  The sentencing guidelines are still in effect, but now they are advisory, where the Judge can use them as a guide, but he or she is not mandated to impose a minimum sentence within that range.  Nor can the guidelines be scored using a preponderance of the evidence standard.

The Michigan Supreme Court has brought Michigan’s sentencing scheme in line with that used by the Federal Courts.   In Lockridge, the Court made clear that based on rulings from the United States Supreme Court, the notion that facts could be used in sentencing that had not been proven beyond a reasonable doubt was a violation of a Defendant’s Sixth Amendment Right to a Fair Trial.  Furthermore, rather than needing a substantial and compelling reason to depart from the guidelines, a sentencing Court’s determinations will be reviewed by an appellate court only for a determination that the sentence imposed was reasonable. 

The result is that the Court has now returned Michigan to an age where judicial discretion is the norm for criminal sentencings.  The results are both positive and negative for convicted offenders.  While judicial discretion in the imposition of sentences means that a Court can look at the individual circumstances of each case and make individualized, Defendant specific sentencing determinations, there are some draw backs.

Advising clients as to what the possible sentence for a crime is going to be is a far easier task when the sentence is mandated by the sentencing guidelines.  The minimum score is determined by the guidelines calculation, unless the case was particularly egregious.  Now, there are a lot more variables in determining what an appropriate sentence might be, and what factors will ultimately be considered by the Court in trying to fashion an appropriate sentence.

Frankly, the Lockridge opinion makes having a knowledgeable and experienced criminal defense attorney all that much more important.  Only time will tell if this return to an age of widespread judicial discretion provides a better sentencing scheme, or provides a system of inequity similar to what led to the creation of the sentencing guidelines in the first place.

When judicial discretion is the norm, having an attorney who is familiar with the system, and has experience with how Judges will handle a criminal defendant who is being sentenced before them can be invaluable.  As a former assistant prosecuting attorney, Dan Williams is very familiar with the criminal justice system, criminal procedure, and with the Judges who preside on Wayne County’s Criminal Bench.  If you have found yourself on the wrong side of the law, give us a call to see about taking your case on today.

Thursday, May 28, 2015

An Overview of Implied Consent and the Implications of Refusal

Mark Mandell, Esq.

Following the U.S. Supreme Court’s decision in Schmerber v California, Michigan was able to enact the Implied Consent Act in 1967. Originally, it required motorists to take a blood and/or urine test at the request of police officer when they are arrested for drunk driving. In the time since, the Act has expanded to cover a wide range of violations, including: felonious driving, manslaughter, operating while visibly impaired (OVI), child endangerment, and most recently operating a vehicle with any amount of controlled substances.

Most often, police departments prefer a breath test in order to avoid the foundational requirements of a blood test. In some instances, such as a serious personal injury accident, the breath test may be unfeasible, and so a chemical test is requested by the police officer.

While it is possible to refuse the officer’s request, it is important that you are aware of the potential penalties of doing so if you are found to have a blood alcohol content (BAC) over 0.08. Currently, there is an informal guideline called the “One-Hour Rule,” in which a person has one hour to decide to refuse or submit to the test. Waiting over an hour is considered a refusal.  Whether or not a person is over the legal limit, refusing the test allows the police officer to confiscate their picture license. After which, the officer will most often seek a search warrant and will ultimately get their evidence one way or another.  If the person is found to be intoxicated, their license will be immediately suspended.

The alleged offender and their attorney have 14 days after the date of arrest to request a hearing. If this is not done, the offender will immediately receive 1-year suspension on their license and 6 points on their driving record if he or she is a first-time offender. If it is their second offence in 7 years, the penalty will be a 2-year suspension on their license and 6 points on their driving record. Both suspensions will take effect five days after the decision has been mailed. Since these penalties are severe, prompt action is crucial.

The hearing will take place 45 days after the arrest, barring an adjournment from either party. There are only four relevant matters to the hearing: Did the police officer have reasonable grounds to believe the alleged offender committed a crime in which implied consent was warranted? Was he or she placed under arrest for this crime? Did the officer provide the alleged offender with their chemical test rights? And finally, did he or she reasonably refuse to submit to a chemical test requested by an officer?

If the alleged is found guilty, he or she will be subject to the same penalties above depending on whether this is their first offence or not. A first-time offender can petition the circuit court for a restricted license in order to travel to and from work, probation, and school, among other destinations listed in MCL 257.319(17). In addition, the circuit court has the power to affirm, modify, or set aside a suspension for a first-time violation case. A different decision will be contingent on new evidence that could not have been reasonably produced for the initial hearing, an error of law, or a material mistake of fact by the hearing officer.

Second-time offenders are not able to petition for a restricted license and cannot appeal to the circuit court for an alternative decision.

Wednesday, April 22, 2015

What Should You Do if the Police Stop Your Car?

It can make your heart sink: Seeing the red and blue police flashers in your rearview mirror. You are being pulled over.

We have all hear about bad encounters with police officers at a traffic stop, but drivers should also understand that traffic stops are some of the most contentious encounters they experience.

First, the police car will park behind you and run your license plate before approaching your vehicle. They are looking to see if you have any priors. Then, they will approach your car.

Once you have rolled down your window, the most important thing to remember is to not make any sudden movements – keep your hands on the wheel. Police are worried about someone reaching for a gun, trying to stash away contraband, or throwing something out the window. Even a quick duck for your wallet could be noted by the officer.

If you have to reach into a compartment to get your registration or insurance, keep your hands on the wheel, and first tell the officer, “I am going to open the glove compartment to get my registration, is that OK?” Once the officer gives the OK, then, slowly, retrieve your registration.

It is also a best practice to respond to every question with “Yes sir” or “Yes ma’am” – no joking around or being sarcastic. This behavior can especially be problematic for younger drivers or new, teen drivers who the officers may believe already have an attitude.

You should also know that police may find any reason to search your car. It could be that the car simply smells like marijuana, whether that is credible or not; perhaps someone in the car smells like they have alcohol on their breath; maybe they believe they see drug contraband or a weapon, even if it is just a cigarette box or the handle of your ice scraper.

The bottom line is that, if they want to give you a hard time, they will. But it will only help your case if you continue to be polite and cordial with the officer. No case has ever been helped by a driver being rude or disorderly in front of the police. Often times the event is caught on camera, and in rare instances, audio is also caught.

If you are asked to get out of your car, once again, do not make any sudden or quick movements. Do whatever they officer may ask of you.

Lastly, make sure you know who you are in the vehicle with. If one of your friends has drugs in their pocket, even if nobody else knew, everyone in the car could be busted for possession of drugs or loitering in the presence of drugs. The charge might not hold up, but it is certainly one you don’t want to face.

If you are facing criminal charges, Mark Mandell is an experienced Metro Detroit defense attorney and a former prosecutor. Call Fausone Bohn, LLP today at (248) 468-4536, and find out how Mark and our other defense attorneys can help you.


Or visit us online at www.fb-firm.com

Tuesday, March 1, 2011

Forging the Path on Check Fraud: The Basics

Check fraud is a common source of criminal activity in our modern society. In a 2009 study by the American Bankers Association (ABA), the estimated bank losses due to fraudulent check schemes were nearly $1.024 billion in 2008. The ABA also reported that 80% of all banks experienced fraudulent check related losses. Check fraud has many different faces and comes in many different forms, such as: forged checks; the use of stolen checks; writing checks knowing the account has insufficient funds; and the making of false statements to induce the payment by check.

The consequences of check fraud in Michigan vary depending on the circumstances surrounding the fraudulent activity. The amount of the fraudulent check and whether someone has any previous offenses determines the severity of the charges.

Check fraud will fall under one of the following three offenses:

1. When the check is less than $100.00 -
• first offense – misdemeanor punishable by imprisonment for 93 days or less, or a fine not to exceed $500.00,
• offense following one or more prior convictions – misdemeanor punishable by imprisonment for 1 year or less, and/or a fine not to exceed $1,000.00;

2. When the check is $100.00 or more but less than $500.00 -
• first offense or second offense – misdemeanor punishable by imprisonment for 1 year or less, or a fine not to exceed $1,000.00 or 3 times the amount of the check (whichever is greater), or both imprisonment and a fine
• third offense or more – felony punishable by imprisonment for 2 years or less and/or a fine not to exceed $2,000.00;

3. When the check is $500.00 or more -
• felony punishable by imprisonment for 2 years or less, or a fine not to exceed $2,000.00 or three times the amount of the check (whichever is greater), or both imprisonment and a fine.

If you have been charged with check fraud, you need a knowledgeable criminal defense attorney to represent you. For more information, please contact Mark Mandell at 248-380-0000, ext. 241 or Melissa Cox at 248-380-0000, ext. 240 or visit our website at http://www.michiganfraudlawyer.com/