Criminal

Thursday, November 17, 2011

Recent Court of Appeals Decision Follows Judicial Trend in Michigan Medical Marihuana Law

December 4, 2011, will mark the three-year anniversary of the enactment of the Michigan Medical Marihuana Act (MMMA). It’s no secret that, over its three-year lifespan, county prosecutors and police agencies have aggressively pursued marihuana manufacturers seeking to shield themselves from prosecution within provisions of the MMMA. It is also no secret that, in many instances, Michigan courts have sanctioned prosecutorial efforts and tightened their interpretations of a law that – lest we forget – was approved by 63% of Michigan voters in 2008. It is no surprise ergo that the most recent Court of Appeals decision in the string of MMMA cases to moving up the appellate ladder has come down in favor of the state.

In People v Blysma, decided on September 28, 2011, the Michigan Court of Appeals held that a registered primary “caregiver” – the title given to a licensed marihuana grower under the Michigan Medical Marihuana Act – can only grow plants for those qualifying patients formally registered to the caregiver through the Michigan Department of Community Health. Blysma was a registered caregiver in Grand Rapids, Michigan and, at the time of his arrest, was leasing a near-downtown apartment unit for the sole purpose of marihuana growing. When police raided the unit, they discovered, among other items, 88 marihuana plants in three growth booths. Blysma was registered as the primary caregiver for two registered qualify patients. The maximum number of plants allowed per patient under MMMA, however, is 12; therefore 64 of the 88 plants fell outside the protections of the Act.

Blysma was charged with manufacturing marihuana under MCL 333.7401(2)(d)(iii) and filed a motion to dismiss on grounds that he was sharing the unit with other registered patients who were growing the remaining 64 plants for their own use, keeping him at the threshold permissible under MMMA. The Court was not persuaded, however, rejecting Blysma’s argument because the MMMA is actually silent as to whether registered patients and registered caregivers may utilize the same enclosed, locked facility to grow marihuana. Referring to last year’s headline MMMA case, People v. Redden, the Court held that “because the MMMA did not repeal any drug laws, any possession of marihuana that does not fall within the ‘narrowly tailored protections’ of the MMMA remains illegal under the PHC [Public Health Code].” The Court also rejected Blysma’s affirmative defense claim of possession for medical purpose allowed under §8 of the MMMA because he was not in compliance with the 12-per-registered-patient rule under §4(b) of the Act.

The trends of aggressive pursuit of marihuana growers by prosecutors and police agencies and extremely narrow judicial interpretation by courts are impacting counties all across the state, including Berrien, Allegan, and Cass Counties. If you are seeking help with compliance with MMMA or are facing criminal charges for possession and/or distribution of marihuana, look no further than Attorney Peter J. Johnson. Contact the Law Office of Peter J. Johnson today at (269) 982-1100 or by email at peterj@attorneypeterjohnson.com or visit his website at http://www.AttorneyPeterJohnson.com.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Thursday, November 17, 2011

Recent Court of Appeals Decision Follows Judicial Trend in Michigan Medical Marihuana Law

December 4, 2011, will mark the three-year anniversary of the enactment of the Michigan Medical Marihuana Act (MMMA). It’s no secret that, over its three-year lifespan, county prosecutors and police agencies have aggressively pursued marihuana manufacturers seeking to shield themselves from prosecution within provisions of the MMMA. It is also no secret that, in many instances, Michigan courts have sanctioned prosecutorial efforts and tightened their interpretations of a law that – lest we forget – was approved by 63% of Michigan voters in 2008. It is no surprise ergo that the most recent Court of Appeals decision in the string of MMMA cases to moving up the appellate ladder has come down in favor of the state.

In People v Blysma, decided on September 28, 2011, the Michigan Court of Appeals held that a registered primary “caregiver” – the title given to a licensed marihuana grower under the Michigan Medical Marihuana Act – can only grow plants for those qualifying patients formally registered to the caregiver through the Michigan Department of Community Health. Blysma was a registered caregiver in Grand Rapids, Michigan and, at the time of his arrest, was leasing a near-downtown apartment unit for the sole purpose of marihuana growing. When police raided the unit, they discovered, among other items, 88 marihuana plants in three growth booths. Blysma was registered as the primary caregiver for two registered qualify patients. The maximum number of plants allowed per patient under MMMA, however, is 12; therefore 64 of the 88 plants fell outside the protections of the Act.

Blysma was charged with manufacturing marihuana under MCL 333.7401(2)(d)(iii) and filed a motion to dismiss on grounds that he was sharing the unit with other registered patients who were growing the remaining 64 plants for their own use, keeping him at the threshold permissible under MMMA. The Court was not persuaded, however, rejecting Blysma’s argument because the MMMA is actually silent as to whether registered patients and registered caregivers may utilize the same enclosed, locked facility to grow marihuana. Referring to last year’s headline MMMA case, People v. Redden, the Court held that “because the MMMA did not repeal any drug laws, any possession of marihuana that does not fall within the ‘narrowly tailored protections’ of the MMMA remains illegal under the PHC [Public Health Code].” The Court also rejected Blysma’s affirmative defense claim of possession for medical purpose allowed under §8 of the MMMA because he was not in compliance with the 12-per-registered-patient rule under §4(b) of the Act.

The trends of aggressive pursuit of marihuana growers by prosecutors and police agencies and extremely narrow judicial interpretation by courts are impacting counties all across the state, including Berrien, Allegan, and Cass Counties. If you are seeking help with compliance with MMMA or are facing criminal charges for possession and/or distribution of marihuana, look no further than Attorney Peter J. Johnson. Contact the Law Office of Peter J. Johnson today at (269) 982-1100 or by email at peterj@attorneypeterjohnson.com or visit his website at http://www.AttorneyPeterJohnson.com.

*Please note:  Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, November 02, 2011

Driving with Suspended License - important changes to process of notice

Court of Appeals finds mailing certificate testimonial in nature; state clerks must testify in open court on notice element in DWSL cases

A recent Michigan Court of Appeals decision could create a logistical nightmare for prosecutors seeking convictions in driving-with-suspended-license (DWSL) cases while bolstering a defensive argument that an accused charged under the DWSL statute, MCL 257.904, had not been adequately notified of his/her license suspension or revocation prior to the date of the offense.
 

The basis of the Court’s decision in People v. Nunley hinged upon its interpretation of the Confrontation Clause found in the Sixth Amendment of the U.S. Constitution, which provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with all witnesses against him…” MCL 257.904 requires, among other things, proof that the accused had been given notice, in accordance with MCL 257.212, that his/her license had been suspended or revoked prior to the time of the offense. In almost all cases, notice of suspension or revocation is provided by mail from the Secretary of State to the driver and is accompanied by a certificate of mailing “naming the person to whom notice was given and specifying the time, place and manner of giving notice.” MCL 257.212. (Personal delivery of the notice of suspension or revocation is also permitted under the statute though certification is still required). In all cases prior to Nunley, the submission into evidence of the certificate of mailing the notice of suspension or revocation was permissible as proof that the suspended or revoked driver had been made aware of the loss of driving privileges prior to the time of the DWSL offense.

In Nunley, however, the Court concluded that since proof of notice prior to the commission of the DWSL offense is an element of the crime under MCL 257.904, the admission into evidence of a certificate of mailing as proof of that element violates the defendant’s right to confront the testimony being offered against him, in this case that of the Secretary of State clerk who issued the certificate of mailing. The Court based its opinion on a U.S. Supreme Court case, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which refused to admit a lab analyst’s report as evidence on the grounds that the results of the report were being offered to prove a fact in question at trial without permitting the defendant the opportunity to cross-examine the report’s author. Because the certificate of mailing in a DWSL case is being offered to prove or establish some fact at trial, the Court characterized the certificate as testimonial in nature thereby preventing its admission under the public record exception to the hearsay rule. “Indeed,” the Court said, “the certificate of mailing is the only evidence of proof of notice and is solely created for that singular purpose.”

The decision will likely be appealed to the Michigan Supreme Court, but in the interim the Court’s ruling has given defense attorneys a valuable bargaining in the litigation process. To defend against challenges to the notice element of MCL 257.904, prosecutors are now faced with the expense and inconvenience of transporting a Secretary of State clerk from Lansing to their courtrooms to testify that he/she did in fact send the notice of suspension or revocation out as indicated in the certification of mailing. This burden, in light of the significant number of DWSL convictions garnered annually in this state, could have a dramatic effect on the approach county prosecutors take in bringing these cases to trial, a result defense attorneys can smile upon.

*Please note:  Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Thursday, September 08, 2011

Court of Appeals Says “Probable Cause” Means More for Courts than Cops

The Michigan Court of Appeals recently published an opinion in People v. Cohen, ruling that the definition of “probable cause” was different when applied at the preliminary examination, than when applied by police in the field.  Probable cause a legal term that generally means enough evidence for a person to reasonably suspect that a crime was committed and that the defendant committed it.  However, in People v. Cohen, the Michigan Court of Appeals explained that there is more to it than that.

When it comes to police acting in their official capacity, the court based the determination of probable cause on the “probability that the person committed the crime as apparent to the officer at the time of the arrest.”  However, once the case progresses to the point that it comes before a judge on a preliminary examination, the standard is raised.  Beyond the requirements already described, the prosecution also has to prove that it probably will be able to establish the defendant’s guilt at the time of trial.  The difference is based on the fact that due to the circumstances and variables present in the field, police have to act on practical, nontechnical principals based on all the facts and circumstances available to them at the time.  The court, on the other hand, has the advantage of distance from the actual arrest, and the prosecutor has the advantage of having more time to gather information about what actually happened.  The prosecutor is therefore appropriately held to a higher standard in proving there is enough evidence to justify spending the court’s time and resources prosecuting the defendant.

So what does this mean to you as the defendant?  Under the new ruling, there is a slightly better chance that your case will be dismissed at the District Court level, without going through the time and expense of a full trial or resulting in a conviction.  Bear in mind, even under this new case, a probable cause standard is still the lowest standard of proof in any court proceeding, so most cases will still be bound over to Circuit Court.  However, the clarification of the standard given by the Court of Appeals puts a new emphasis on the preliminary examination, and gives your attorney a stronger basis to argue that the prosecutor simply has not provided enough proof to show that he or she will probably be able to prove your guilt.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, August 31, 2011

The Punishment Must Fit the Crime

A recent Michigan Court of Appeals decision, People v. Brooks, underscored how important it is for sentencing courts to consider both the offender and the crime when determining an appropriate sentence.  Michigan has long utilized statutory sentencing guidelines that place restrictions on the sentence that can be imposed in any felony proceeding.  These statutes take into account the offender’s criminal history as well as the circumstances of the present offense.  After all the factors are considered, the sentencing guidelines will indicate a range in months within which the minimum sentence can be set.  The maximum sentence for a crime is always set by statute.  A court is only allowed to “depart” from the indicated range for the minimum sentence if there is a substantial and compelling reason that is based on objective and verifiable factors.  This is something that should be reserved for exceptional cases where the sentencing guidelines fail to give adequate and proportionate weight to some aspect relevant to sentencing. 

In People v. Brooks, the defendant was convicted of statutory entering without breaking.  This is a low-severity “Class E” felony that the court equated with trespassing.  The offender had 12 prior felony convictions and three prior misdemeanor convictions.  He was also on probation at the time of the arrest.  Because the sentencing guidelines only accounted for the first four low-severity felonies, the court determined that some upward departure was appropriate given the extent of the defendant’s criminal history.  But the fact that some upward departure was appropriate did not condone the life sentence that was imposed.

Even where departure is appropriate, the sentence imposed must still amount to a “principled outcome” in light of the offender and the circumstances.  The trial court imposed a life sentence even though the sentencing guidelines indicated less than four years of prison.  The highest possible minimum sentence for the offense was just over six years.  Therefore, the court determined that the life sentence was disproportionate and outside the bounds of principled outcomes. 

If you are facing a felony charge, ask your attorney what the minimum sentencing range might be in your case.  Remember that the court can deviate in some cases, but knowing that range may help you to decide whether to take a plea or go on to trial.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Tuesday, August 23, 2011

Court of Appeals Uses Paternity Act to Justify Criminal Sexual Conduct Conviction

In a decision dated July 26, 2011, People v. Zajaczkowski, the Michigan Court of Appeals determined that the defendant convicted of Criminal Sexual Conduct, 1^st Degree, was “related to the victim by blood or affinity to the fourth degree” even though a DNA test showed that he was not the biological son of the victim’s father.  The defendant was charged and convicted of Criminal Sexual Conduct under statutory provisions requiring sexual penetration with a victim who was at least 13 but less than 16 years of age and related to the defendant by blood or affinity to the fourth degree.  MCL 750.520b(1)(b)(ii)  In an unusual twist of events, the defendant, who had been raised to believe the victim was his half-sister, claimed that her father was not his biological father.  Subsequent genetic testing confirmed his claims.  The defendant had been named an issue of the marriage between his mother and her husband in the Judgment of Divorce in 1979.  It was therefore left to the Court of Appeals to determine whether the Judgment or the genetic testing would determine the relationship between the defendant and the victim for the criminal sexual conduct charges.

After defining “by blood” to mean “related by descent from a common ancestor,” the court looked to the Paternity Act and MCL 552.29 to determine whether the defendant could challenge his paternity (who the court believed his father to be).  In Michigan, a person who is conceived and born during a marriage is presumed to be the legitimate “issue” of that marriage.  That means that it is presumed that the wife is that person’s mother and the husband is that person’s father.  Only the mother or the presumed legal father has the power to challenge that presumption under the Paternity Act, and then only during the pendency of the divorce proceedings.  Without an affirmative finding by a family court that the defendant was not a legitimate issue of the marriage, the defendant did not have the standing (authority) to challenge the presumption that the man married to his mother when he was conceived and born was his father.  Since in the eyes of the law that man was the defendant’s father, the victim, that man’s daughter, was the defendant’s half sister.  Therefore, the conviction of Criminal Sexual Conduct, 1^st Degree, was upheld.

Interestingly, very little emphasis was placed on the legislative intent behind the statute – “to protect minor children from sexual abuse by persons with whom they have a close relationship.”  Even though this legislative intent would permit the broad interpretation of “related by blood” that the court used, it gave the purpose scant mention.  That purpose, it would seem, would provide a superior reason to convict in this particular case – to protect the 15 year old victim from the abusive acts of someone she believed to be her much older half brother.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Thursday, August 18, 2011

The Legal Effects of Child Abuse

The issue of Child Abuse is a sensitive and serious issue that brings into play in several different parts of the court system.  Victims and their families can find help from a number of different sources including (but not limited to) the Michigan Department of Human Services and domesticviolence.org.  If you are or know a victim of child abuse you are encouraged to use those resources.  This article, however, will focus on explaining the legal effects of Child Abuse. 

What Qualifies as Child Abuse?

Child abuse is physical or serious mental harm done to a person less than 18 years of age.  Physical harm means any injury to a child’s physical condition.  Serious physical harm “seriously impairs the child’s health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.”  Serious mental harm is any injury to the child’s mental condition or welfare that is visibly observable and amounts to a “substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”  Examples of this might include phobias, developmental delays or regression, depression, or serious anxiety. MCL 750.136b.

Criminal Consequences of Child Abuse

In the criminal system in the State of Michigan there are four (4) degrees of Child Abuse.  The different degrees count down in severity.  Depending on the facts in a given case, a person can be charged with multiple counts of one of the degrees, or may be charged with different degrees of Child Abuse.

Child Abuse 1^st Degree can be charged when a person “knowingly or intentionally causes serious physical or serious mental harm to a child.”  If convicted of the felony Child Abuse 1^st Degree, a person could serve up to 15 years in prison.

Child Abuse 2^nd Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes serious physical harm or mental harm to a child;
2. Knowingly or intentionally acts in a way that is likely to cause serious physical or serious mental harm, even if that harm does not actually occur; or
3. Knowingly or intentionally acts in a cruel, brutal, inhuman, sadistic or torturous way toward a child, even if harm does not occur.

Child Abuse 3^rd Degree can be charged when a person:

1. “Knowingly or intentionally causes physical harm to a child;” or
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, which actually results in physical harm.

If convicted of the felony Child Abuse 3^rd Degree, a person could serve up to 2 years in prison.

Child Abuse 4^th Degree can be charged when a person:

1. Fails to act or acts recklessly in a way that causes physical harm to a child;
2. Knowingly or intentionally creates an unreasonable risk of harm to a child, regardless of whether harm actually occurs.

If convicted of the misdemeanor Child Abuse 4^th Degree, a person could serve up to 1 year in a local jail.

A person cannot be convicted of Child Abuse if using reasonable force to administer reasonable discipline to a child (such as spanking with an open hand).  A person may also defend against a charge of Child Abuse by showing that he or she was acting in reasonable response to an act of Domestic Violence. MCL 750.136b.

If you have been charged with Child Abuse, contact an attorney to discuss possible defenses as well as a possible reduction in the degree and therefore the severity of punishment.

Juvenile Court Consequences of Child Abuse

The effects of Child Abuse in the legal system do not end with conviction.  If a person has been charged or otherwise accused of child abuse, that will likely start an investigation by Child Protective Services.  If there is “probable cause” to believe the Child Abuse occurred (a low standard of proof), then Child Protective Services may remove the child and any siblings or other minor children in the home and place them with a foster parent.  This affects the rights and privileges of both the charged person and the other parent(s) of the children.  Once the children are removed and the initial proceedings are completed the case is turned over to the Department of Human Services.

The Department of Human Services may terminate the rights of a parent immediately if there is clear and convincing evidence (the highest standard of proof in the family court) of the following the parent abused the child or a sibling by:

1. Abandoning the young child;
2. Committing Criminal Sexual Conduct involving penetration, attempted penetration, or the intent to penetrate against the child or sibling;
3. Causing severe physical abuse such as battering or torturing the child or sibling;
4.  Causing life-threatening injury to the child or sibling;
5.  Committing or attempting Murder or Voluntary Manslaughter, including under theories of aiding and abetting, solicitation, or conspiracy.

If none of the above circumstances apply, the Department of Human Services must provide services toward reunification between the parent and child for a period of at least 6 months.  If material improvement is not found after that period, the Department of Human Services may terminate the rights of a parent if there is clear and convincing evidence (the highest standard of proof in the family court) of the following (with respect to Child Abuse):

1. The child or a sibling suffered physical injury or sexual abuse by that parent and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
2. The parent had an opportunity to prevent physical injury or sexual abuse but failed to do so and there is a reasonable likelihood of further risk of injury or abuse in the foreseeable future.
3. The child or a sibling suffered physical injury or sexual abuse by a nonparent and there is a reasonable likelihood of further risk of injury or abuse by that nonparent in the foreseeable future. MCL 712A.19b

A recently published case by the Michigan Court of Appeals, In re Ellis, decided June 14, 2011, allows the court to terminate the rights of both parents after serious physical harm has come to the child and if the parents were the sole caretakers of the child, even if the court is unable to determine which parent actually caused the injury.  This is because one parent caused the injury and the other failed to prevent the abuse.  The court conditioned its ruling on the fact that the evidence suggested the abuse had occurred over a period of time and would have been noticeable by either parent.

Family Court Consequences

In cases where the Family Court has jurisdiction over a minor child subsequent to a divorce or under the Child Custody Act or Paternity Act, the other parent can file a motion modify the custody and parenting time arrangement reevaluated in light of the charges of Child Abuse.  If such a motion is filed, the court will hold a hearing and may reserve (put a stop to) or suspend (put a temporary stop to) a person’s right to parenting time with the child.  The court may also require that any parenting time be supervised by either a professional counselor or a mutually agreeable friend or family member.  It may also require particular counseling, education, or other treatment for the parent or child before regular parenting time is resumed.  A Family Court cannot grant custody to a parent who has been convicted of Criminal Sexual against the minor child or a sibling unless the other parent and the child (of sufficient age) agree to the custody arrangement. MCL 722.25a.

The effects of Child Abuse reach far beyond the legal consequences and the courts take those effects very seriously.  However, knowing what is to come in the event of Child Abuse can help you to take the proper protective measures, and can help you to know when is the right time to call an attorney.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may have a legal issue with respect to Child Abuse.

Wednesday, July 13, 2011

Michigan Supreme Court Says Homeless Sex Offenders Still Have to Register Residence

In a 4-3 decision filed Monday, July 11, 2011, the Michigan Supreme Court held that even homeless sex offenders had a duty to comply with the registration requirements of the Sex Offender Registry Act (MCL 28.721 et seq.) by registering their “residence” or “domicile.”  The four justices paradoxically determined that lack of a home does not preclude a sex offender from reporting his or her residence or domicile.

The decision arose from the dismissal of “Failure to Report” charges against a defendant who had listed a homeless shelter as his residence from 2002 until 2006.  In 2006 it was discovered he was a sex offender and he was asked to leave the shelter according to their policy.  The defendant did not go to a Michigan State Police post and register a new residence within 10 days as is required by the statute.  In fact, he had not registered since 2002.  His attorney argued that he was unable to report because he in fact did not have a residence to report.  The opinion contains no evidence of the habits of the defendant as far as where he typically travelled or remained.  Nor did either the majority or the dissent seem concerned with the habits of this particular defendant.

The majority defined “residence” as “that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”  Emphasizing that this definition begins with “place” rather than “home” or “building” the majority held that a place could be a park as long as the sex offender habitually sleeps there and establishes regular lodging there. The dissent noted that in order to have a “residence” a person must have a (1) habitual (2) regular place of lodging where he or she (3) keeps his or her personal effects.  Neither the majority nor the dissent defined “lodging.”  The Merriam Webster online dictionary defines lodging as “a place to live: Dwelling” or “sleeping accommodations,” “a temporary place to stay” or “a room in the house of another used as a residence.”  Thus even though both opinions rely on the term, the majority does so when the definition of the term would be in stark conflict with its application of the term to its generally defined “place” of residence.  While a homeless individual may regularly sleep in a park, he or she could not have established regular “lodging” there where there are no accommodations to be made, and no room to be used as a residence.

The majority then defined “domicile” as “that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.”  However, it relied on an excerpt from a 1897 case that states “[e]very person must have a domicile somewhere” and without applying the definition to the defendant’s circumstances, summarily stated he must have had a domicile to register.  The dissent rightly chastised the majority for failing to apply its own definition of domicile to the present circumstances.  It also noted that, according to Michigan case law, in order to establish a domicile, one must have a residence and an intent to remain there indefinitely.  Thus rather than being the broader, all encompassing term that the majority sought to make it, “domicile” is in fact a subset of “residence” most appropriately defined as a “permanent residence.”  The dissent properly notes that with no residence, the homeless simply cannot establish a domicile.

Even though the majority recognized that many homeless individuals are “transient” and “nomadic” it still held that they could register because the Michigan State Police would allow them to register their domicile at “123 Homeless” in the city, state, county, and zip code where they spend their days.  It reasoned that the intent of the legislature was to create a “comprehensive” list of sex offenders, and so this designation furthered that goal.  The dissent criticized this method of assigning an arbitrary address to a homeless person as creating a false and misleading statement to the police and subjecting the homeless sex offender to further prosecution. Neither opinion addressed the two larger issues: (1) that homeless sex offenders are not necessarily tied to any one city, county, state, or zip code, and (2) that requiring them to register every time they change cities would become unreasonably burdensome.  Particularly in metropolitan areas, what city or township a person is in may depend on which side of the road he or she is walking on.  According to the majority’s registration requirement, every time a homeless person crossed a city line and set up a makeshift shelter there, he or she would have to report this “new residence” to the Michigan State Police within 10 days.  Therefore, the majority’s decision would penalize those who are unable to find or afford a permanent residence or it requires them to limit themselves to one city or township in their attempts to find shelter.  The more plausible and practical option would have been to instruct the Michigan State Police to include on their forms a box indicating “Homeless” to be checked by the sex offender.  Then the offender could be listed in the county where he last reported without being tied to the particular city or township where he happened to be that day.  With such a simple solution available, it is curious why neither the majority nor the dissent thought of it, and why the majority would instead place such an onerous burden on the homeless in our communities.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, July 06, 2011

Michigan Legislature Loosens Restrictions on Setting Aside Convictions for Youthful Mistakes

For so many Michigan residents, one poor decision has ruined their lives for many years.  One unfortunate brush with the law when they were young resulted in a felony conviction and now everything from financial aid to lucrative jobs is closed to them because they are labeled as “felons.”  For quite some time there has been very little statutory relief available.  The statute required felons to wait 5 years after conviction or imprisonment, whichever occurs later, and then petition the court to set aside that conviction.  Until June 23, 2011, the felon could not have any other criminal record.  Even a simple misdemeanor like Disturbing the Peace would bar recovery. 

That changed when the Michigan Legislature amended the statute, adding a provision that permits the felon to file the petition and have that conviction set aside even if he or she has up to 2 additional “minor offenses.”  A minor offense is a misdemeanor punishable by up to 90 days and/or a fine of up to $1,000.00.  Most importantly, those 2 minor offenses must have been committed before the felon’s 22^nd birthday.  Because of this limitation, it seems the Michigan Legislature clearly intended this law to be designed to forgive minor offenses made while the felon was young and foolish.

When considered together with the recent changes to the Sex Offender Registry Act, this law seems to mark a change in the Michigan Legislature intends for courts to deal with juvenile and young adult offenders.  If the Legislature is not intending leniency, it is at least legislating forgiveness for offenses made during those years when juveniles and young adults are most likely to cross the law without truly considering the consequences.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Tuesday, May 10, 2011

Big Changes Coming to the Michigan Sex Offender Registration Act

Like most states, Michigan requires individuals convicted of certain sexual offenses to register with local law enforcement.  Currently, certain basic information is available to the general public about these individuals.  But starting July 1, 2011, the Michigan Sex Offender Registration Act is getting an overhaul.  The three biggest changes are:

• The implementation of 3 tiers of offenses based on their nature and severity with different registry requirements for each; and
• The requirement of registering individuals to provide more information and report changes more quickly;
• The exclusion of so-called “Romeo & Juliet” and juvenile offenders from registration.

This post will briefly describe the new Michigan Sex Offender Registration Act focusing primarily on the changes coming in July.

3 Tiers of Offenses Treat Offenses Based on Nature and Severity

As the law presently stands, any person convicted of a “listed offense” is required to register as a sex offender for 25 years as a first offender and for life as a repeat offender.  “Listed Offenses” range from a conviction for disorderly person with indecent or obscene conduct up to and including Criminal Sexual Conduct in the first degree (rape), Kidnapping a minor, and Creating Child Abusive Material (child pornography).  While the Offender Detail on the website indicates the particular offense the individual was convicted of, all offenders are treated the same and listed together in the same list.  When observing a list of offenders in a particular geographic area, there is no differentiation between a repeat child molester and a person who was convicted of indecent exposure (streaking).  Under the new amendment, each database entry will indicate the tier of the offender, so that the public will know the severity of the offense without having to wade through the convicted offenses.

A Tier 1 Offender is a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

• Possession of Child Abusive Material (child pornography)
• Aggravated Indecent Exposure toward a minor
• Unlawful Imprisonment of a minor
• Criminal Sexual Conduct 4^th Degree and Criminal Sexual Assault of an adult
• Stalking of a minor

Tier 1 Offenders must register 1 time per year for 15 years following their conviction or release from jail or prison.

A Tier 2 Offender is a person who commits a second Tier 1 Offense, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

• Accosting or Soliciting a minor (1^st or 2^nd offense)
• Creation or Distribution of Child Abusive Material (child pornography)
• Use of a Computer in a Sexual Felony
• Sodomy unless
  • The victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim; or
  • The victim was 16 or 17 years of age and consented to the act with an individual who was not in his or her household or a position of custodial authority at the time.
• Gross Indecency unless one of the above exceptions applies
• Solicitation of Prostitution or Immoral Act of a minor
• Pandering
• Criminal Sexual Conduct 2^nd Degree or 4^th Degree, or Criminal Sexual Assault of a minor over 13 years of age
• Criminal Sexual Conduct 2^nd Degree of an adult

Tier 2 Offenders must register 2 times per year for 25 years following their conviction or release from jail or prison.

A Tier 3 Offender is a person who commits another listed offense after being required to register as a Tier 2 Offender, or a person who commits one of the following offenses (including attempts and conspiracy to commit the offense):

• Gross Indecency with a minor under 13
• Kidnapping of a minor
• Parental Kidnapping
• Criminal Sexual Conduct 1^st Degree or 3^rd Degree, or Aggravated Criminal Sexual Assault unless the victim was between 13 and 16 years of age and consented to the act with an individual not 4 years older than the victim
• Criminal Sexual Conduct 2^nd Degree or Criminal Sexual Assault against a minor less than 13 years of age
• Criminal Sexual Conduct 4^th Degree committed by a person age 17 or older against a minor less than 13 years of age

Tier 3 Offenders must register 4 times per year for life.

Importantly, the new listed offenses exclude Indecent Exposure (other than aggravated) and Disorderly Person.  Also, the amended statute eliminates a much-contested “catch all” provision that allowed a judge to require a person to register if convicted of an unlisted offense that was sexual in nature.

Sex Offenders Will Be Required to Provide More Information

The law as it stands now requires sex offenders to report their:

• Name,
• Social security number,
• Birth date,
• Residential address,
• Physical description;
• Photograph; and
• Fingerprints. 

Starting July 1, 2011, individuals who are required to register will have to provide all of the above information as well as reporting:

• Any temporary residence where they will stay for more than 7 days;
• Employers (including contractors);
• Schools where they are enrolled;
• Telephone numbers;
• Email addresses and instant message screen names or identifiers;
• License plate, registration, and description of any motor vehicle they regularly use;
• Driver’s License Number (or state identification card number);
• Digital copies of their passports or immigration documents;
• Professional licenses; and
• Palm prints.

All of this information will be made available to law enforcement agents.  The public will have access to all of this information except the individual’s social security number, travel and immigration documents, and email addresses or instant message screen names.  In addition, the public website will contain a description of the sexual offense of which the individual was convicted, as well as any additional sexual offenses they were charged with at the time.

In addition, where today a sex offender must register changes in residence within 10 days of changing that residence, beginning July 1, 2011, that individual must report within 3 days of:

• Changing residences;
• Changing employment or having employment terminated for any reason;
• Enrolling as a student or discontinuing enrollment;
• Changing his or her name;
• Temporarily residing in another location for more than 7 days;
• Establishing any new email or instant message addresses
• Purchasing or beginning to use any vehicle or selling or discontinue use of any vehicle

Also, the one time registration fee will increase from $35.00 to $50.00.  The result of these changes will be that the public will have access to significantly more information on sex offenders in their geographic area, but the burden on those required to register will be significantly greater.  It is likely that this will result in significantly more prosecutions for failure to comply with this act.

Romeo & Juliet and Juvenile Offenders Can Petition to Be Excluded from the Registry

For the first time, the amended statute will provide a method for certain offenders to be excluded from registration based on the circumstances of their particular offense.  In deciding whether to exclude a particular individual, the courts will consider:

• The offender’s age and maturity at the time of the offense
• The victim’s age and maturity at the time of the offense
• The nature of the offense
• The severity of the offense
• The offender’s prior criminal and juvenile history
• The likelihood the offender will commit further sexual offenses
• Any victim impact statement
• Any other relevant information.

However, if the court determines the individual continues to be a threat to the public, the request will be denied.

Tier 1 Offenders may petition the court:

• 10 years after their conviction or release from jail or prison
• If they have no subsequent felony convictions
• If they have no subsequent listed offenses
• If they have successfully completed any probation or parole without revocation; and
• If they have completed a sex offender treatment program.

Tier 3 Offenders may petition the court:

• 25 years after their adjudication or release from confinement
• If they were adjudicated responsible as a juvenile offender
• If they have no subsequent felony convictions
• If they have no subsequent listed offenses
• If they have successfully completed any probation or parole without revocation; and
• If they have completed a sex offender treatment program.

All offenders may petition the court if the conviction was the result of a consensual sexual act and

• The victim was between the ages of 13 and 16 and the offender was less than 4 years older; or
• In Sodomy or Gross Indecency cases, the victim was between the ages of 13 and 16 and the offender was less than 4 years older; or
• In Sodomy, Gross Indecency, or Criminal Sexual Conduct 2^nd Degree cases, the victim was 16 years old or more and not a part of the same household or under custodial authority of the offender

All offenders may also petition the court if they were adjudicated as a juvenile and were less than 14 years of age at the time of the offense, or if the offense for which they are required to register is no longer a listed offense after July 1, 2011.

The Sex Offender Registration Act has always been a complicated statute and has always carefully balanced the needs of the public against the rights of sexual offenders.  The upcoming changes are equally complex but they will hopefully allow offenders to be treated differently in appropriate proportion to the nature and severity of the offense, and will allow the public to better distinguish the real threats to its safety.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, April 20, 2011

When is the Right Time to Call an Attorney?

Sometimes it can be hard to tell when it is the right time to call an attorney.  Legal services are often expensive and sometimes you do not want to contact a lawyer until you are sure about going forward.  Sometimes, potential clients call too soon, before their case has developed far enough for an attorney to help them.  Worse, many potential clients wait until it is too late and their window of opportunity has passed.  So how do you know when to pick up the phone, or send in an email?  The answer depends on the type of case.

Criminal

It is almost never too soon to contact an attorney if you believe that you may be suspected or charged with a crime.  Even if you have not yet been charged, having an attorney “on retainer” to represent you can protect your rights and make certain that you are not caught talking to the police alone when you would rather remain silent.  Also, in some cases, an attorney can make deals that will keep you from even being charge if, for example, you agree to testify against one of the other people involved in the case.  Having an attorney early also improves your chances of getting a fair pre-conviction bond so you will not be held in jail any longer than is necessary.  This bond is usually set at the initial hearing, called an arraignment.  While your attorney can file a motion to modify or reduce the bond later on, the arguments are often more persuasive at the start, and you can avoid having to wait in jail until the motion can be heard.  All in all, there is no reason to wait to contact an attorney in a criminal matter.  The sooner he or she becomes involved, the better.

Civil

There are many different kinds of civil cases, each with their own considerations.  The Peter J. Johnson Law Office does not specialize in civil law, but there are occasions when the attorneys here can be retained.  Civil law is the area where the most clients call too soon or too late.  In order for a matter to be heard in a civil case, damages have to be definite.  This means that the doctors have to be done diagnosing, if not treating any injuries, the repair shop needs to be done fixing the property or at least have provided an estimate, and all the numbers are in on the cost of the breach of contract.  There are, of course, exceptions, but generally, it is not helpful to contact an attorney until you have reached this stage.

It is more important that you not wait too long, though.  The State of Michigan, like most other states, have what are called “Statutes of Limitations” or windows of opportunity within which you can file a claim.  The standard Statute of Limitations is 6 years, but particular types of matters, such as medical malpractice or auto negligence have shorter period – some as short as 1 or 2 years.  More importantly, sometimes this is measured from when the injury actually happened, rather than when you found out it was a problem.  Your best plan of action is to contact an attorney early in the process and find out what the window of opportunity is with respect to your kind of case.

Family

This can be the most difficult kind of case to decide just when it is the right time to get an attorney involved.  Often matrimonial discord can be resolved with counseling or informal mediation without resorting to a divorce.  Other times, there has already been a divorce, but the question is whether things will get better or worse if you ask a judge to reevaluate custody, support, or parenting time for your children.  It is best in these cases to wait until you are certain of the change you want to happen, and you have proof of your claims.  If you come in, for example, and tell the lawyer that you thing your wife or husband is cheating on you, it will likely cost you a lot more for the lawyer or private investigator to dig through all the facts than if you are able to show him or her the emails supporting the claim yourself.  Also, remember that for child custody issues, the courts look at what is in the best interests of the child, and after a judgment has been entered, will only consider evidence of what has changed since the last order.  Document anything you question and bring that documentation to your attorney when it is time.  A motion can be started before you have the proof, but without evidence, you are not likely to get the result you want, and after the motion has been filed, your ex-husband or wife is not likely to cooperate nearly as much as he or she would have before.

Probate

Probate matters, including guardianships, conservatorships, and deceased estates can be the most emotionally trying times to contact an attorney, and for that reason many potential clients wait longer than they should to start the proceedings.  For probate matters such as wills and powers of attorney, it is best to come in before you believe you really need the document.  As a rule of thumb, if you have a house or a child, you need a will, and probably a power of attorney as well.  That is because these documents protect you and your estate if something were to happen to you, even unexpectedly.  For more complex matters, such as guardianships and conservatorships, an attorney should be contacted as soon as the need arises – that is, as soon as it is clear that the parents will not be able to care for the child or the disabled adult is not able to care for his or herself.

Most importantly, if you have had a death in the family, it is important to contact an attorney within 30 days of the death.  If a will is not filed with the court within that time, creditors can initiate proceedings to claim the deceased’s assets.  Even if all you can do is get the estate started, it is very important that an attorney be contacted right away.  Waiting could threaten the wishes of the deceased as to what is to be done with his or her possessions.

Regardless of the area of law, deciding to bring in an attorney is no small matter.  If you are unsure as to whether it is time, the best course of action is to talk to an attorney and see what he or she would recommend.  Do not procrastinate.  Sometimes the consequences of inaction can be dire, but they can usually be avoided by an early call to an attorney.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may have a legal issue.

Friday, April 08, 2011

Medical Marihuana – An Evolving Standard

The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., went into effect on December 4, 2008.  Over two years later, patients, lawyers, and judges are still trying to understand just how to follow and enforce it.  This is not unusual – courts often take time to hash out the details on new statutes – but for now, those patients who have received medical marihuana cards run the risk of become guinea pigs in the system.  To help you, here are some pointers on how to legally use medical marijuana.

1.  Get a referral.  The courts are questioning the legitimacy of several marihuana clinics in the state.  Their concern is that no doctor-patient relationship exists before the doctor signs off on the use of medical marihuana.  You can help ensure that your registry identification card is considered valid by having your primary care physician sign off on your card personally, or if they are unwilling to do so, by getting a written referral to a marihuana clinic.  This also will help because your primary care physician can provide the necessary medical records to the marihuana clinic to verify the existence of your “debilitating medical condition.”  The more the acquisition of the medical marihuana card resembles any other medical treatment, the more likely the courts are to affirm the legitimacy of the registry identification card.

1.  Get your card first.  The statute has some protections for individuals using marihuana for medical purposes without first becoming a qualifying patient.  However, these protections, in the form of an affirmative defense presented to the jury at the time of trial, are expensive (because you must bring in your physician to testify that you in fact need and benefit from the use of marihuana) and difficult to prove.  This is only exasperated by the fact that, though the bill passed with over 60% of the vote, the issue of medical marihuana is still politically charged, and particularly in regions like Berrien County, there may be members of your jury who are not inclined to let anyone get away with using the drug for any reason.

So how does getting your card first help you?  If you wait until you receive your registry identification card labeling you as a “Qualifying Patient” before you use marihuana, your attorney can file a Motion to Dismiss to be heard by the judge prior to trial.  At that hearing you need only prove that you were complying with the statute and that you have a legitimate card.  If both are true, then the judge should dismiss your case.

2.  Do not consent to an “inspection.”  The MMMA, at MCL 333.26426, specifically states that possession of or application for a registry identification card cannot be used to establish the required level of suspicion to justify a search of your person or property, which includes your home or vehicle.  However, because the MMMA only protects those who have the cards, police will still investigate reports that someone is growing marihuana.  If the police come to your home on such an investigation, show the officers your registry identification card (you may even want to keep photocopies of it and give one to the officer), but then politely decline to allow them to search your property.  Ask them to show you a search warrant and let you read it before you let them into your home.  Be polite and cooperative, but do not let them into your home without first reading the warrant.

3.  Only keep the permitted amount of marihuana. The MMMA places very precise limits on the amount of marihuana a Qualifying Patient is permitted to have.  Specifically, it states that a qualifying patient may possess 2.5 ounces of usable marihuana and 12 plants (unless the patient has designated a primary caregiver).  What gets some patients into trouble is what is considered a plant.  Early decisions on the matter stated anything with a leaf, a stem, and a root was considered a plant.  However, anything after the plant has created “cotyledons,” or the first pair of leaves that sprout from a seed, is now considered a plant.  This includes any clippings from a developed plant, even if those clippings have not yet grown roots. 

It is important to limit yourself to these numbers.  In a recent case, People of the State of Michigan v. King, the Michigan Court of Appeals ruled that by failing to comply with the growing requirements of the MMMA a card-carrying Qualifying Patient lost not only the right to file a motion to dismiss, but also the right to assert the affirmative defense to the jury.

4.  Make sure your grow operation complies with the statute.  The MMMA requires that any marihuana grown be kept in an “enclosed locked facility.”  This is defined as “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualify patient.”  If you live with anyone else, just having locks on your house doors is not enough because your roommate or relative has access to your grow operation.  Also, the courts have ruled that the facility must be enclosed on all sides, including the top.  In one case where the patient was growing his marihuana outside in a fenced, locked kennel wrapped in plastic, the court said it was not good enough because someone could gain access through the open top of the kennel.  While the language of the statute only requires that your 12 plants be kept in the enclosed locked facility, it would be wise to keep your drying or useable marihuana locked up as well.  Remember, the police and courts are still working the kinks out of the system.  Now is not the time to push the envelope.  Again, if you fail to keep your marihuana plants properly locked up, it could cost you both the motion to dismiss and the affirmative defense.

5.  Do not exchange or show your marihuana to others in a public place.  The MMMA does not permit the sale of marihuana.  In fact, selling marihuana to someone who is not allowed to use it for medical purposes will result in you losing your registry identification card and being convicted of a 2 year felony, which will also result in your driver’s license being revoked.  Even if you are just comparing medications or discussing strains, remember, police are trained to see drug buys.  It would be easy to mistake your innocent activity for criminal activity.  Save yourself the trouble and have those discussions indoors, away from public view.

6.  Do not use and drive.  Even if you are a Qualifying Patient with a valid registry identification card, there are still a number of things you cannot do while under the influence of marihuana.  You cannot do possess or use marihuana on school grounds, school busses, or in correctional facilities.  You also cannot smoke marihuana on public transportation or in a public place.  Most importantly, you cannot operate a motor vehicle, aircraft, or motorboat while under the influence of marihuana.  If a police officer pulls you over and smells marihuana, the fact that you have a registry identification card will not protect you from the Operating while Intoxicated charges that may be filed.

Michigan voters have spoken in favor of allowing patients with debilitating medical conditions to use marihuana for medical purposes.  However, the law is complicated and confusing, even for police and the courts.  Protect yourself by being informed and complying with all the applicable regulations.  Consider coordinating with a local compassion club, or the Michigan Medical Marijuana Association, which can help you learn what you need to know to stay out of the courtroom.  If you still have questions, contact an attorney.  He or she should be able to help you sort out the complexities of the statute and subsequent court decisions.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, March 16, 2011

I’ve Been Charged With a Crime, Now What?

Being charged with a crime can be an intimidating thing for many people.  Courthouses are large and busy places and it is easy to get lost in what is happening in your case.  To clear up some of that confusion, here is a very basic outline of the various court hearings in different kinds of criminal cases.  There may be additional hearings in your particular case, depending upon what you have been charged with and the circumstances of your case.

There are three types of matters that are dealt with in the criminal courts: civil infractions, misdemeanors, and felonies. 

A civil infraction is generally a minor traffic-related offense such as speeding.  These matters have no chance of sending a defendant to jail.  Usually, the primary issues in these matters are the amount of fines and costs and the license consequences imposed by the Secretary of State.  Because of the low severity of these matters, they involve the least number of hearings.  If you are charged with a civil infraction you can expect the following court hearings:

• Arraignment: At this hearing you (and your attorney if you have retained one) appear before a magistrate or judge and enter a plea (generally not guilty) to the offense charged.  The hearing usually happens within 14 days of the charges being issued (generally when you get the ticket).  The magistrate or judge will impose a bond if you have not already done so at the jail.  If you are unable to post the bond at the time of arraignment you will be taken to the jail until you can produce the required funds.  For this reason, it is always a good idea to bring a fair amount of cash with you to the arraignment.  Bonds for civil infractions generally range from $100 to $500.
• Pretrial: This hearing is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached.  In a plea agreement, the defendant agrees to plead responsible to some charge, usually lower than the one initially authorized, in exchange for certain concessions on the part of the prosecutor.  In a civil infraction, this could mean that you receive fewer points on your license, or that the fines and costs will be capped, or you may be given more time to pay.  If you reach a plea agreement at the time of the Pretrial conference, you will go before the magistrate or judge who will ask you questions about what happened on the date in question, and about whether you understand what is happening and the potential consequences.  Be respectful when speaking to the judge or magistrate.  This is the person who has the final say on many of the consequences of your charge, so now is not the time to express you distrust of the court system, or your displeasure over appearing before him or her.
• Formal Hearing: This is the big day.  If you and your attorney have not been able to come to a plea agreement with the prosecutor before this hearing, then this is your opportunity to present evidence to the judge about why you are not responsible for the charges.  The prosecutor will put on evidence, most likely including the testimony of the officer who issued the civil infraction ticket, to show that you are responsible for violating a provision of the motor vehicle code.  Your attorney will have an opportunity to cross-examine any witnesses put on by the prosecution and to examine all the evidence.  Then your attorney will put on any evidence that you have provided to show why you are not responsible.  This could include having you testify in court.  After all the testimony has been heard and evidence received, the judge will determine whether or not you are responsible and will impose a sentence (penalty) if you are in fact responsible.  The judge has the final say, though there may be an opportunity to appeal.

A misdemeanor is a crime that is generally punishable by a maximum sentence of one year or less, but certain “high court misdemeanors” include two-year maximum sentences.  They are resolved solely within the District Court.  (Berrien County has a unified Trial Court, which includes both District and Circuit Courts.)  These crimes include higher-severity traffic offenses (such as operating while intoxicated), most theft offenses, some low-severity assaultive crimes, and various other low-severity crimes.  Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.”  This means that the defendant will not be held in jail for more than 28 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 28 day limitation)  If you are charged with a misdemeanor you can expect the following court hearings:

• Arraignment: This hearing is just as it is described above, except that it will be held before a District Court Judge, rather than a magistrate.  Bonds for misdemeanors generally range up to $5,000 but usually only require the defendant to pay 10% (or $500).
• Pretrial: This hearing is just as it is described above.  In a misdemeanor, a plea agreement could mean that you may not have to go to jail, may only be required to serve probation, or may even be able to only pay fines and costs.  If there is alcohol, controlled substances, or a victim involved in the charges, the judge will set the matter for sentencing at a later date.  If not, then he or she will likely sentence you at the same time as the plea.
• Final Pretrial or Status Conference: This hearing is usually scheduled a day or two prior to the jury trial (see below).  It is your last chance to make a deal with the prosecutor before going through the jury trial process.
• Jury or Non-Jury Trial: This is the equivalent of the Formal Hearing in a civil infraction.  In a misdemeanor case, you can demand to have a jury of six people from your community (your peers) hear your case rather than just the judge.  After all the testimony has been heard and evidence received, the jury (or judge in a non-jury trial) will determine whether or not you are guilty.
• Sentencing: At this final hearing, the judge will impose a sentence (penalty) if you are in fact found guilty.  The judge has the final say, though there may be an opportunity to appeal.

A felony is a high-severity crime, usually defined as a crime that has a possible penalty of more than one year in a state prison.  They are initially addressed by the District Court, but a final determination will be made by the Circuit Court.  These crimes include most drug crimes, most serious assault crimes, weapon charges, and other high crimes.  These are the most serious criminal charges.  Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.”  This means that the defendant will not be held in jail for more than 180 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 180 day limitation) If you are charged with a felony you can expect the following court hearings:

• Arraignment: This hearing is just as described in the civil infraction section except that it occurs before a District Court Judge.  Bonds for felonies can range into the tens and even hundreds of thousands.  Often the defendant is only required to pay 10% of the amount ordered.  Other times, a bail bondsman can be hired to post the bond for a payment of 10% of the total bond issued.
• Pre-Exam Conference: This hearing in the District Court is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached.  However, often you will have to wait until after the Preliminary Examination to enter the plea, because it must be entered in Circuit Court.  This hearing also provides an opportunity for your attorney to request disclosure of important evidence in your case and find out the factual basis behind the charges.
• Preliminary Examination: This hearing in the District Court requires the prosecutor to put forward enough evidence to show that there is “probable cause” to believe that a crime has been committed and that the defendant is the one who committed it.  Probable cause is a very low standard to meet, so very few cases are dismissed at the Preliminary Examination stage.  Basically, this hearing is a check to make sure there is enough evidence to move forward.  In a practical sense, the primary purpose of a Preliminary Examination is to give your attorney a first look at the evidence against you.  If the District Court judge determines that there is probable cause in your case, it will be “bound over” to Circuit Court.  Your District Court bond may be continued or you may be arraigned again in Circuit Court.
• Case Conference: This hearing in the Circuit Court gives you and your attorney a chance to negotiate a plea agreement with the prosecutor. In a felony matter, this could mean that you may be sentenced to time in a local jail instead of a state prison, may only be required to serve probation, or, in rare cases, may even be able to only pay fines and costs.  Following the entry of a plea the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
• Status Conference: This hearing is usually scheduled a day or two prior to the jury trial.  It is your last chance to make a deal with the prosecutor before going through the jury trial process.  It is also an opportunity for your attorney and the prosecutor to make certain that everything is in place for the trial, and for the Circuit Court Judge to make rulings on any pre-trial motions filed by either attorney. 
• Jury or Non-Jury Trial: This hearing is just as described in the misdemeanor section, except that the jury may have up to twelve members.  If the jury finds that you are guilty of the charges against you, the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
• Sentencing: At this final hearing, the Circuit Court Judge will impose a sentence (penalty) if you are in fact found guilty.  The judge has the final say, though there may be an opportunity to appeal.

In any of the above matters, your attorney may schedule additional hearings to try to modify the terms of your bond, limit the evidence that can be used at trial, and assert certain defenses.  These hearings will generally be heard before the Final Pretrial or Status Conference.

Criminal court procedure can be confusing and is often raced through by prosecutors and judges who have heavy caseloads and busy schedules.  A good defense attorney is essential to make sure that your rights and interests are fully represented and that you do not get lost in the shuffle.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, March 02, 2011

Supreme Court Rules the Dead Can Speak at Trial

On February 28, 2011, the Supreme Court ruled on a Michigan case involving statements made to the police by the victim in Michigan v. Bryant.  In a decision that appears to go against existing legal precedent, Justice Sotomayor writing on behalf of the Court held that the statements of the victim to the police were admissible at trial because the “primary purpose” of those statements were made to address an “ongoing emergency.”

To understand this decision, you need a little background.  The United States Constitution grants each criminal defendant the right to “be confronted with the witnesses against him.”  This is designed to protect the defendant against statements made to the police or other government officials when he or she has not had the opportunity to cross-examine or question the validity of those statements.  However, for many years it had been common practice to allow these statements to be admitted at trial as long as they fell within one of the commonly accepted “hearsay exceptions” including statements made in contemplation of death.  The theory was that the circumstances in exceptions were inherently more credible because a person was less likely to lie if, for example, he or she believed he was about to die.

In 2004, in a case called Crawford v. Washington, the Supreme Court reigned in on this liberal use of hearsay exceptions to avoid requiring witnesses to confront the defendant.  In that case the Court ruled that, even if a hearsay exception applied, a witness must be required to confront the defendant unless he or she was legally unavailable and the defendant had had a previous opportunity to cross examine the witness.  If not, then any statement that was “testimonial” in nature would be inadmissible at trial.  “Testimonial” was not expressly defined, but included police interrogations.

Two years later the Supreme Court addressed the issue of when a statement is “testimonial” in Davis v. Washington and Hammon v. Indiana.  Essentially, the Court carved out an exception – that statements made to police are not “testimonial” if the primary purpose for the statements was to resolve a present emergency.  The Court in Davis distinguished between recounting events that were currently happening, and describing past events. 

It was in light of this history of cases that the Court made its ruling in Michigan v. Bryant.  The police in the case found the victim shot and bleeding in the parking lot of gas station.  The victim reported that he had been shot by the defendant through the back door of the defendant’s home, and that he had driven himself to the parking lot.  The emergency medical services arrived within approximately 10 minutes and transported the victim to the hospital where he died within hours.  Despite the fact that the shooting had occurred 25 minutes earlier in another location some unknown distance away from where the victim was found, the Supreme Court ruled that there was an “ongoing emergency” and that the primary purpose of the questions and answers were to address the “ongoing emergency.”  To justify its departure from Davis and Hammon, the court noted that here there was a gun involved, which the court seemed to imply created an inherent risk to the public.  The Court also relied on the "informal" and at times disorganized nature of the police questioning as evidence of an "ongoing emergency."  Also, the Court stated that nothing the victim had said would lead the police to think that this was a private conflict or that the emergency had ended.  Thus rather than having to demonstrate that the emergency still existed, all that the police, and by extension the prosecutor, had to demonstrate was that the possibility of a threat to the public had not been eliminated.

The effect of this case is that the “ongoing emergency” exception to what is “testimonial” requiring witnesses confront the defendant in a criminal trial has been greatly broadened.  Rather than the common understanding of an emergency, which would require some apparent and readily present threat, the Court has created an assumption that, at least where a gun is involved, an “ongoing emergency” exists until the police can locate the suspect or believe that he is unarmed or otherwise unlikely to be a risk to the public.  Future criminal defendants and their lawyers will need to be aware of this definition of an “ongoing emergency” and future appeals will have to define exactly how long such an emergency might last when, as here, there is no apparent threat when the police arrive on the scene.

Read the opinion here.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, February 16, 2011

Beyond the Sentence

Criminal defense attorneys often get wrapped up in the particular terms of a sentence when talking to their clients about the benefits and risks of taking a plea, but for our clients, we realize that your concerns are much broader.  You want to know how this conviction is going to impact your life.  This includes plenty of what attorneys call “collateral consequences” that go beyond jail, probation, and fines and costs.  Here is an almost definitely incomplete list of potential affects of a conviction that you should be aware of.

Deportation

Probably the most important consequence to any non-citizen is the risk of deportation.  There are several crimes, including most felonies, which will cause you to be deemed deportable if you are convicted of them or plead guilty to them.  Once you are deemed deportable you will be automatically deported unless you fit into a very narrow exception that would allow the Attorney General to waive deportation.  The crimes that may cause you to be deemed deportable are:

• Crimes of “moral turpitude” with a possible sentence of at least 1 year in jail that are convicted within 5 years of your date of admission (or 2 or more crimes of “moral turpitude” regardless of when they are committed)
• Aggravated felonies
• Failure to register as a sex offender
• Controlled Substance crimes except for a single offense for possessing 30 grams or less of marijuana for personal use
• Drug abuse or addiction
• Firearm offenses
• Domestic violence, stalking, or child abuse, neglect, or abandonment
• Violation of a Personal Protection Order involving threats of violence, harassment or bodily injury to the protected party
• Additional federal crimes

Sex Offender Registry

Another very important consequence of some convictions is the requirement that you register as a sex offender.  If you are convicted or plead guilty to an offense listed in the Michigan Sex Offender Registry Act, MCL 28.722, you will be required to register as a sex offender for a period of 25 years.  If you already are required to register as a sex offender, then you will be required to register for life.  This requirement applies to the following crimes:

• Accosting, enticing or soliciting child for immoral purpose
• Sodomy against a minor
• Indecent Exposure, Second Offense
• Third or subsequent offenses of any of the following:
  • Disorderly Person
  • Indecent Exposure
• Gross indecency against a minor
• Kidnapping a minor
• Leading, taking, carrying away, decoying, or enticing away a child under 14
• Soliciting, accosting, or inviting a minor to commit prostitution or immoral act
• Pandering
• Criminal Sexual Conduct or Sexual Assault

Driver’s License Consequences

Many criminal charges also carry with them the risk of sanctions to your driver’s license through the Michigan Secretary of State.  These determinations are made by the Secretary of State and are not within the control of the prosecutor or the court.  These sanctions apply to the following crimes:

• Controlled Substance crimes
• Operating While Intoxicated
• Operating While Visibly Impaired
• Open Intoxicants in a Motor Vehicle
• Minor in Possession of Alcohol
• Use of a False ID to Purchase Alcohol
• Driving While License Suspended
• Failure to Pay Child Support

Also, even if you have not been convicted, if you were asked to take a chemical test to determine whether you were intoxicated while driving and you refused your license will be automatically suspended for one (1) year.  If you refuse a second time within seven (7) years, your license will be automatically suspended for two (2) years.

Civil Liability

Sometimes, criminal actions can also expose you to civil liability to the victim.  These include cases of malicious destruction of property and assault matters as well as others.  If you are convicted or plead guilty to these kinds of criminal actions, what you say on the record can be used against you in the civil suit, potentially exposing you to paying substantial financial damages.  However, this can be avoided if you agree to plead No Contest to the charges.  Sometimes a prosecutor will not agree to this arrangement, but if you are concerned about a potential lawsuit, talk to your attorney about avoiding that liability by pleading No Contest instead.

Employment

Some employers will not hire convicted felons.  However, the employers who take a hard line on this are fewer than you think.  More often, they want to know the circumstances behind the conviction.  Also, if you are convicted to a misdemeanor, many employers will still be willing to hire you.

However, there are some jobs, particularly those that require special security clearance, that take a hard stance against criminal activity, even after you are already hired.  Also, several industries such as the medical field, attorneys, and day care providers, require certifications that will be revoked if you are convicted or plead guilty to certain kinds of crimes.  If you work in one such industry, tell your attorney.  He or she will work hard to keep any plea agreement on such terms that your employment consequences will be minimal.

Scholarships

In today’s economic climate, many people are going back to school and relying on federal and state scholarships to pay for tuition and living expenses along the way.  It is important to know that conviction of a felony may make you ineligible for future financial aide.  In particular, conviction of a controlled substance felony will make you lose any federal funding that you have previously been awarded.

There is more to being convicted of a crime than just jail time, probation, and fines and costs, but if you are actively involved in the plea negotiation process and inform your attorney of any special circumstances that may apply to your case, then your attorney can work hard to help minimize the collateral consequences of your conviction or guilty plea.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Thursday, February 03, 2011

St. Joseph, Michigan, Burglary Case Upheld by Court of Appeals

The Michigan Court of Appeals published a case recently, People v. Osby, which upheld the conviction of a defendant for breaking into several motor vehicles in and around St. Joseph, Michigan, and for possessing “burglar’s tools,” a felony punishable by up to ten (10) years in prison.

The defendant was arrested after police reviewed surveillance footage showing an African American man walking toward the vehicle of one of the victims from a white van.  That white van was later tracked to a motel where the defendant was staying.  A search of the defendant’s hotel room revealed items belonging to the victims and marijuana.  The police arrested the defendant and discovered a “window punch” when they searched him. 

A window punch, or window hammer, is a small, sharply pointed object that is used to shatter the window of a vehicle to provide quick access or escape.  It is often carried by emergency personnel and police responding to automobile accidents.  On appeal, the defendant questioned whether this window punch could be considered a “burglar’s tool” to support a conviction of possession of burglar’s tools contrary to MCL 750.116.  The statute makes it a crime to knowingly possess any device, tool, or substance used for forcing or breaking open “any building, room, vault, safe or other depository” to steal property therein.  The defendant argued that the statute did not apply to automobiles.  However, the court of appeals ruled that a depository was a catch-all phrase which included motor vehicles or any place a person would leave money or valuables for safekeeping.  Because the average person locks his or her car doors assuming the contents of the vehicle will be safe, the court determined that a vehicle can be considered a depository under the statute.

The defendant appealed on several other grounds as well, but the court of appeals found no error in the conviction or sentence.

Read the statute and the Michigan Court of Appeals' opinion on the State of Michigan website.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

Wednesday, January 12, 2011

Talking to the Police

The State of Michigan Court of Appeals recently published a case, People v. Vaughn, which dealt, in part, with the defendant's motion to suppress statements made to the police because he had not been read his constitutional Miranda warnings.  The court determined that, under the circumstances, the defendant was not in custody, so the statements could be used at trial.

Read the case on the State of Michigan website.

This is a problem that often finds its way into the Peter J. Johnson Law Office.  Contrary to what all the crime dramas out there would have you believe, the police do not usually put suspects under arrest at the first meeting, or before they ask any questions.  Instead, there is often an investigation stage where several suspects may be contacted and questioned without anyone being taken into police custody. 

So what do you need to know about talking to the police?

• First, you should know that you have a right to refuse to talk to the police, and to ask them to leave.  A lot of people are concerned about what happens if they do not immediately cooperate with the police and do whatever is asked of them.  Don't be.  The police know that you have a right to ask them to leave or to stop talking to them.  The key is to be respectful.  Politely say that you would rather not talk to the officer right now and kindly ask him or her to leave.  It is your right to do so.

• Second, you should know that if you let the police into your home, they are allowed to use anything that is in "plain view" against you at trial.  If you choose to speak to the police, suggest that you will come to the station instead.  This has the added benefit that anything they say to you or you say to them can be recorded.  That way your attorney can review it later if necessary.

• Third, you have the right to talk to an attorney before you talk to the police.  This applies both before and after an arrest.  If the police want to speak to you about a crime and you feel uncomfortable, you may ask them to postpone the interview until you have had an opportunity to talk to an attorney.  Many times, lawyers will be able to listen to your story and advise you as to whether it is a good idea to talk to the police officer.  Peter J. Johnson frequently facilitates meetings between police and his clients when it is in their best interests.

• Fourth, if you are arrested, or otherwise taken into custody prior to questioning, the police must read you your constitutional Miranda rights.  Unlike in the crime dramas, this does not have to happen the minute they place you under arrest, but it is supposed to happen before they ask you any questions.  If they do not read you your rights, then your attorney can move to suppress any statements you made to the police before they read you your rights.  Your remedy if you are not read your rights is that the statements cannot be used at trial. 

• Finally, it is rarely a good idea to talk to the police if you believe you may be a suspect in a crime.  Although there are times when doing so can point them in another direction, often what you say can be used against you later in ways you did not expect at the time.  This is why it is always a good idea to contact an attorney if you believe you are a suspect.  An attorney can help to facilitate the interview, as described above, or can help to protect your rights if you decide not to talk to the police.

What a defendant says to the police is often one of the most important pieces of evidence for the prosecution at trial.  This is why it is important for you to know how to react if the police come to talk to you.  Be calm, be polite, but be smart about what you say and when you say it.  It can make all the difference.

* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above.  This post is not intended as legal advice and may not apply to your particular case.  It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.