OWI in a Motionless Car

DUI Motionless Car

Lansing Michigan OWI Attorney

Can you be charged and convicted of Operating While Intoxicated (OWI) if your car isn’t even running? The answer is maybe. It depends on the surrounding facts.

“Operating” a Motor Vehicle

Whether or not you can be convicted of an OWI hinges on whether the prosecution can prove beyond a reasonable doubt that you were “operating” a motor vehicle on a public roadway. In 2010 we found out that “operating” doesn’t necessarily mean “driving” when Mr. Lechleitner (whose BAC was over the legal limit of .08) was attempted to push his car off an icy road when an oncoming motorist swerved and ran into a guardrail which subsequently caused another motorist to crash into that car resulting in death. Mr. Lechleitner’s defense was that pushing the car with the ignition off was not “operating” it.[1] The Michigan Court of Appeals felt otherwise. In failing to adopt the defendant’s proposed “cause to function” standard for operating, the Michigan Court of Appeals held that a defendant is “operating” a motor vehicle when it is placed is motion or in a position that poses a significant risk of causing a collision. In other words, the car doesn’t have to be motion for an OWI.

Evidence of Operating a Vehicle: Case-by-Case Basis

Foot on the Brake While In Drive

There’s no bright line rule that says is A,B, and C are present then the motorist is operating for purposed of an OWI. It doesn’t really work like that. Instead, each case is different and circumstantial, as well as direct evidence, will dictate what constitutes “operating” for purposes of the OWI statute. In People v Wood[2], the defendant was found in a vehicle, engine running, and the automatic transmission in drive. Mr. Wood’s foot was on the brake pedal which kept the car from moving. The Michigan Supreme Court held he was “operating” the vehicle. The Court defined the term in relation to the danger the DUI statute seeks to prevent—the collision of a vehicle being operated by an intoxicated person. Once a car is put into motion, it poses a significant risk of collision. Mr. Wood’s vehicle would have been set in motion had his foot slipped off the brake pedal. The Court reasoned that he had not “returned the vehicle to a position posing no risk of collision with other persons or property.”

Asleep Behind the Wheel

In People v Spencley[3], the defendant was parked partially on a highway shoulder and partially in a motel driveway. The lights were on the engine was running. Mr. Spencley was asleep sitting in the car when officers approached him and subsequently placed him under arrest for OWI. The Court analysis didn’t focus so much on the operating aspect as it did that the officer’s did not have probable cause to place defendant under arrest as Mr. Spencley did not “operate” the motor vehicle infront of them. Generally, misdemeanors have to be committed in the officer’s presence for a warrantless arrest. There is an exception. An officer may place someone under arrest for OWI even if it wasn’t committed in their presence but only if there was an accident. In this case, there was not. The remedy was to suppress the evidence of the defendant’s BAC. A defendant could very well be considered to be operating a motor vehicle while asleep behind the wheel. It’s a case-by-case basis.

Using a Car as a Shelter as Opposed to Transportation

In People v Burton[4], the defendant was found in his truck at a golf course. His seatbelt was on, the engine running, and the gear was either in park or neutral. He admitted to driving on one side of the parking lot of the golf course to the other. The Court found that there was no evidence that the defendant intended to use his truck as a motor vehicle as opposed to shelter. The mere fact that the engine was running is not enough to prove intent to put it in motion. The lack of motion in this case was due to the truck being in park or neutral, which is distinguishable from the lack of motion in People v Wood as his foot being on the brake was what kept the car motionless.

Lansing Michigan OWI Lawyer

If you have been charged with an OWI, you need an experienced OWI attorney representing you. If you are charged with a drunk driving offense while your car was not in motion, you may have defenses that could get your case dismissed. Call Austin Legal Services, PLC today to speak to a Michigan DUI lawyer for a free consultation at (517) 614-1983.

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kent, Livingston, Jackson, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Kalamazoo, Grand Rapids, Brighton, Howell, Jackson.

 

[1] Peo v Lechleitner, 291 Mich App 56 (2010)

[2] Peo v Wood, 450 Mich 399 (1995)

[3] Peo v Spencley, 197 Mich App 505 (1992)

[4] Peo v Burton, 252 Mich App 130 (2002)

Michigan Child Abuse Laws

criminal defense attorney

Lansing Michigan Child Abuse Defense Lawyer

Michigan treats child abuse very seriously with penalties up to life in prison for some offenses. Everyone should agree that children need to be protected from abuse and neglect. However, with a trail of parents being falsely accused and convicted on weak evidence and pseudo-science masquerading as proper therapeutic techniques and children’s testimony, those accused of child abuse need aggressive legal representation and a thorough and proper investigation of any accusations.

Degrees and Punishments for Child Abuse

First Degree Child Abuse

If someone knowingly or intentionally causes serious physical or serious mental harm to a child, that person faces any number of years in prison up to life.

Second Degree Child Abuse

If any of the following apply:

  • A person’s omission causes serious physical or serious mental harm or if a person’s reckless act causes serious physical harm or serious mental harm to a child
  • A person knowingly or intentionally commits an act likely to cause serious physical or serious mental harm to a child regardless of whether any harm results
  • A person knowingly or intentionally commits an act that is cruel to a child regardless of whether such harm results.

For a first offense of 2nd degree child abuse—a person faces up to 10 years in prison

For a second offense of 2nd degree child abuse—a person faces up to 20 years in prison

Third Degree Child Abuse

If any of the following apply:

  • A person knowingly or intentionally causes harm to a child
  • A person knowingly or intentionally causes harm or injury to a child and the act results in physical harm to a child or an act under the circumstances poses an unreasonable risk of injury to a child

If convicted a person faces up to two years in prison.

Fourth Degree Child Abuse

If any of the following apply

  • A person’s omission or reckless act causes a physical harm to a child
  • A person knowingly or intentionally poses an unreasonable risk of harm or injury to a child regardless of whether such harm results

If convicted a person faces up to one year in jail.

Is Disciplining Your Child Abuse?

No! Under the law, a parent, guardian, or any other person that is permitted by law, may reasonably discipline a child including the use of reasonable force. However, CPS and school personnel may differ on what “reasonable force” and “discipline” mean or should mean. That is what often leads to CPS and police investigations.

Affirmative Defense

A defendant may offer an affirmative defense that any harm that resulted was a reasonable response to act of domestic violence in light of all the facts and circumstances known to the defendant at the time. An affirmative defense is a rare instance under the law where a defendant has the burden of proof. Normally, the prosecutor has the sole burden of proof and the defendant is not legally required to prove or disprove anything, or do anything at all for that matter. However, under the law, a defendant has the burden to prove an affirmative defense by the preponderance of the evidence.

What Should I do if I am Being Investigated for Child Abuse?

If you have been questioned by CPS, police, or other governmental agencies, do not speak to them about the allegations without having a lawyer present or before consulting with an attorney. Any little thing you say, even though it seems benign at the time, can and will be used against you in subsequent proceedings.

Lansing Michigan Child Abuse Defense Attorney

Overzealous CPS investigators can mistake common bruises and scratches for abuse when in fact they have a very legitimate cause. Society’s desire to protect vulnerable children from harm can cause knee-jerk reactions that lead to parents being falsely accused and even having their parental rights or custody taken away. If you have been accused of child abuse, contact Austin Legal Services, PLC today to speak to a Michigan child abuse defense lawyer at (517) 614-1983 for a free, no obligation consultation!

Defending child abuse charges, CPS investigations, and parental rights termination throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Calhoun, Clinton, Barry, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, Jackson, Battle Creek, Hastings, Corunna, Durand, St. Johns.

 

Michigan Supreme Court: Parental Rights Cannot be Terminated in Stepparent Adoption Cases Unless Petitioning Parent Has Sole Legal Custody

Stepparent Adoption

Lansing Michigan Adoption Attorney

In a recent decision by the Michigan Supreme Court, the justices held that a stepparent may not adopt their spouse’s child unless their spouse had full legal custody of the child. If the spouse has joint legal custody, the Court does not have the authority to terminate the parental rights of the other parent’s parental rights.

Stepparent adoptions are governed by statute MCL 710.51(6). The child cannot be adopted by the stepparent until the parental rights of the other biological parent are terminated either voluntarily or involuntarily. Voluntarily is the easiest as all the other parent has to do is appear before the Court and state on the record that he wishes to voluntarily give up his parental rights and that he believes it is in the best interest of the child to be adopted by the stepparent. If the other parent does not give up his parental rights voluntarily then the stepparent and spouse must petition the court to involuntarily terminate the parental rights. After an initial determination by an attorney referee, the matter goes before one of the probate judges. The petitioner must establish by clear and convincing evidence that the parental rights of the other parent should be terminated.

Termination of Parental Rights in Stepparent Adoptions

The relevant portion of the Michigan stepparent adoption statute states that for purposes of a stepparent adoption, the parental rights of the biological parent may be terminated if that parent has both failed and neglected to provide regular and substantial support for the child and regularly and substantially failed to visit, contact, or communicate with the child. The statute allows for such termination of parental rights if all three of the following exist:

1)   The parents of the child are divorced, or the parents of the child are unmarried and the father acknowledges paternity, or a putative (presumed biological but not legal0 father in some instances

2)   The parent who has legal custody of the child subsequently remarries, and

3)   That parent’s spouse (stepparent) petitions to adopt the child.

Clearly the statute refers to a parent that has sole legal custody and not joint legal custody.

Stepparent Adoptions When the Spouse Only Has Joint Legal Custody

What if the stepparent’s spouse only has joint legal custody? Does that mean the stepparent is without remedy and the adoption can never take place if the other parent chooses not to voluntarily terminate his parental rights? The answer is no, the adoption may still take place and the stepparent is not without remedy. The stepparent’s spouse can only seek a modification of the custody agreement from joint legal custody to full legal custody.

Michigan Relative and Stepparent Adoption Attorney

Adopting a relative or stepparent is a very complicated process. You need someone with experience in navigating through the legal process to help you so you can concentrate on the newest addition to your family. If you are interested in adopting your relative or stepchild please contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan adoption attorney.

Helping people adopt relatives and stepchildren throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Kent, Calhoun, Washtenaw, Kalamazoo, Shiawassee, Jackson, Livingston, Barry, Genesee in the cities of Lansing, Charlotte, St. Johns, Ithaca, Howell, Jackson, Corunna, Battle Creek, Kalamazoo, Hastings, Ann Arbor, Flint.

 

Prior Bad Acts in Michigan Sex Crimes

CSC 2

Lansing Michigan Criminal Sexual Conduct (CSC) Defense Lawyer

Ordinarily, prosecutors are not allowed to introduce evidence that a defendant committed the same or similar act to the one he is currently charged with to show a propensity towards such behavior or that the defendant acted in conformity with that propensity. In other words, if a defendant is on trial for stealing a toaster, the court will not allow evidence that defendant stole toasters in the past to show that since he did it before than he probably did it this time. Also, the prosecutor cannot introduce the evidence just to show that the defendant has a poor disposition of character. There are various reasons for this.

First, a defendant should be tried solely on the evidence of the current charge and not any past indiscretions. Second, the danger is that the jury may overreact and convict the defendant based upon his past bad conduct rather than the evidence presented on the current charge. That’s what the law refers to as evidence that is more prejudicial than probative. The potential harm to the defendant outweighs any benefit it gives to the prosecution or helping the jury understand the case.

MCL 768.27a and MRE 404(b)

Under Michigan Rules of Evidence 404(b), the prosecutor is precluded from introducing evidence of prior bad acts to show propensity or that the defendant acted in conformity with that propensity. However, Michigan has a law (MCL 768.27a) that allows them to do just that in sex offense cases against a minor, even though it directly conflicts with the rules of evidence. It also violates the fundamental rules of fairness as it is inherently prejudicial to the defendant. Prosecutors can introduce such evidence of prior sexual misconduct to not only show propensity towards committing sexual offenses, but to show the disposition of the defendant’s character. In other words, to show that he’s a bad guy. Not only does he have to defend against the evidence on the current charge, but against allegations of past misconduct, some of which may never have been reported or proven in court.

Prior Bad Acts Balanced Between Relevance and Unfair Prejudice

Michigan Rules of Evidence 403 still applies to MCL 768.27a. That means that the prior bad acts can be barred by the court if the relevance of introducing them is outweighed by the danger of unfair prejudice to the defendant. Essentially, the prior bad acts will be barred from being introduced as evidence at trial if the unfair prejudice substantially outweighs its probative or beneficial value. The danger to the defendant is that the jury will convict because of defendant’s prior misconduct instead of the facts presented at trial.

Reasons Why the Court May Exclude Evidence of Defendant’s Prior Sexual Misconduct

  • There is a dissimilarity between the prior acts and the charged offense
  • The prior bad acts occurred a long time ago compared to the time the charged offense allegedly occurred
  • The infrequency of the prior bad acts
  • The presence of intervening facts
  • The lack of reliability of the evidence supporting the prior bad acts
  • There is a lack of need for evidence beyond the complaining witness and defendant’s testimony

No 10-Year Limitation on Introducing Evidence of Prior Bad Acts

Unlike MCL 768.27b for domestic violence cases, there is no 10-year limit for introducing evidence of prior bad acts. The age of the prior sexual offenses can be taken into consideration when deciding whether they should be admitted, but there is not a ban on the prior offenses simply because of how long ago they occurred. The court weighs the propensity inference in favor of the probative value, not the prejudicial effect. Again, this is inherently unfair to the defendant, the one whose life and freedom is on the line.

Lansing Michigan Sex Crimes Defense Attorney

If you have been charged with a sex offense or criminal sexual conduct (csc), you need to have someone with experience defending against sex crime allegations and opposing evidence of prior misconduct which can grossly prejudice the jury against the defendant. If you are facing rape charges or other sex crimes, contact Austin Legal Services, PLC to speak to a Michigan sex crimes attorney. Call (517) 614-1983 for a free, no obligation consultation today!

Defending criminal sexual conduct (csc) charges, rape allegations, and opposing evidence of prior sex offenses throughout Michigan in the counties of Ingham, Eaton, Clinton, Jackson, Livingston, Kent, Calhoun, Shiawassee in the cities of Lansing, East Lansing, Mason, St. Johns, Charlotte, Jackson, Corunna, Durand, Grand Rapids, Battle Creek, Kalamazoo.

 

 

Michigan Sex Crimes—Criminal Sexual Conduct (CSC)

Criminal Sexual Conduct (CSC)

Lansing Michigan Sex Crimes Attorney

Being accused of rape or molestation is a terrifying experience. This is the type of crime where even the mere accusation has the ability to permanently harm someone’s life and reputation. The irrevocable damage can be very destructive in terms of how family, friends, co-workers, and employers view you. Even if the accusations turn out to be false, they often leave behind an indelible stain. These cases can be very emotional for those involved, including juries, judges, prosecutors, and investigators. If you have been charged, accused, or under investigation for rape, molestation, or other sex crimes, you need an experienced criminal defense attorney on your side.

Michigan Criminal Sexual Conduct (CSC), aka “Rape”

Michigan calls its rape statute Criminal Sexual Conduct (CSC). It is divided into four degrees with the first and third degrees requiring penetration, while the second and fourth degrees require sexual touching. The most severe sentence is CSC 1st degree which carries up to life in prison and CSC 4th degree is the lowest which is a high-court misdemeanor carrying up to two years in prison. If convicted, you will have to comply with the Sex Offender Registry Act (SORA) unless there is an exception to your case.

Sex Offender Registry Act (SORA)

If you are convicted of criminal sexual conduct, most likely you will have to comply with the sex offender registry unless an exception applies such as the complaining witness (“victim”) was between the ages of 13 and 16, there was no more than a four-year age difference between the complaining witness and the defendant, and the act was consensual. If you are currently on the sex offender registry, you may be able to petition for removal through the Romeo and Juliet provisions or other amendments.

Corroboration of the Allegation is Not Necessary

A common misconception in rape cases is that independent evidence, such as a medical report or rape kit, must support the allegation of the complaining witness. Sadly, that is not the case. Juries are instructed that corroboration is not necessary and that they can convict based on testimony alone. Prosecutors often play on juries’ emotions and sympathy for the “victim,” especially in weak cases or cases involving minors. Sex crimes are vastly different than other criminal charges because the outcomes can be affected by false allegations and emotionalism.

Special Accommodations in Sex Crime Cases

Sex crimes are different in a lot of ways. They are unique as they have double punishment for the same offense with the sex offender registry and prosecutors are permitted to give complaining witnesses special accommodations in the courtroom, even if it is highly prejudicial to the defendant. In cases involving minors (and sometimes adults) prosecutor are permitted to use barriers in the courtroom to block the complaining witness from seeing the defendant while testifying or re-arranging counsel tables. If the complaining witness is a minor, they are also offered a support person or someone to keep them company and sit next to them while testifying.

Prior Bad Acts or Past Offenses Can be Used Against the Defendant

Another reason how sex crimes are different is that the prosecutor is allowed to do something that they are not permitted to do in any other case—they can introduce evidence that a defendant committed sexual offenses in the past (even if they were unreported and not prosecuted) in cases involving minors and offer it to the jury for propensity. In other words, the prosecutor can introduce such evidence to show that since the defendant misbehaved in the past, they can use that to conclude he had a propensity towards such misbehavior. Like its federal counterpart, the Michigan Rules of Evidence 404(b) precludes a prosecutor from introducing evidence of prior bad acts to show that the defendant acted in conformity with such bad behavior when he committed the current offense.

The main reason is that we want the jury to decide the case based upon the evidence presented on the current charge and not have their minds poisoned by acts a defendant may have committed years ago. Even acts that he was acquitted of in court can be used against a defendant! Prosecutors are allowed to do this because a special statute allows them to. Thankfully, it does have its limitations and the defense can still argue the evidence should be kept out because its irrelevant and other evidentiary reasons.

Criminal Sexual Conduct (CSC) Charges

CSC 1st Degree

Involves sexual penetration and any of the following: Victim is less than 13 years old

  • Victim is 13-15 years old and a blood relative of defendant, lives in defendant’s home, or the defendant is in an authority position over victim
  • Multiple actors are involved and force or coercion is used
  • A weapon was involved
  • Victim suffers personal injury and force or coercion is used
  • Victim suffers personal injury and is incapacitated
  • Defendant was in the process of committing another felony
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator
  • Defendant is a person of authority over the victim

This is a felony punishable by up to any term of years up to life in prison.

CSC 2nd Degree

Involves sexual contact with the genital area, groin, inner thigh, buttocks, or breasts and any of the circumstances listed in CSC 1st.

This is a felony punishable by up to 15 years in prison.

CSC 3rd Degree

Involves sexual penetration and any of the following: Victim is 13-15 years old

  • Force or coercion is used
  • Victim is incapacitated
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator

This is a felony punishable by up to 15 years in prison.

CSC 4th Degree

Involves sexual contact and any of the following:

  • Force or coercion is used
  • Victim is incapacitated
  • Defendant works for the Michigan Department of Corrections (MDOC) and the victim is an inmate of the MDOC
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator
  • Defendant used unethical conduct while treating the victim during a medical exam

This is a high court misdemeanor (procedurally treated like a felony) and is punishable by up to two years in prison.

Lansing Michigan Criminal Sexual Conduct Defense Attorney

Being charged with rape can have life-altering consequences that may be irreversible. If you have been charged with rape, accused of rape, or under investigation for rape do not speak to the police or take any polygraph tests! Contact Austin Legal Services, PLC to speak to a Michigan sex crimes defense attorney at (517) 614-1983 today!

Defending sex crimes and allegations of rape, CSC, and molestation throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Calhoun, Kalamazoo, Washtenaw, Barry, Genesee, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Jackson, Battle Creek, Kalamazoo, Ann Arbor, Hastings, Flint, Corunna, Durand.

 

SCOTUS Holds a Right to Privacy in Cell Phones: Police May Not Search Cell Phone Data as a Search Incident to Arrest

Cell Phone

Lansing Michigan Fourth Amendment Attorney

In a rare 9-0 decision last week, the Supreme Court of the United States held that police may not search cell phone data as a search incident to arrest. Instead, the Court held that police must generally obtain a warrant if they want to search an arrestee’s phone. That is a big victory for the Fourth Amendment as Constitutional and privacy advocates rejoiced.

Riley v California and California v Wurie

The Court combined two companion cases for the purpose of deciding the issue of whether searching through cell phone data was a valid search incident to arrest. The two cases were Riley v Californian and California v Wurie. In Riley, the defendant was arrested after a traffic violation led to a weapons charge. Officers searched Riley’s cell phone and repeatedly saw term associated with street gangs. Based upon information they found and after further analysis of the cell phone’s content, Riley was charged with a shooting and faced an enhanced sentence based on gang membership. The trial court denied Riley’s motion to suppress and the California Court of Appeal affirmed the trial court’s decision.

In California v Wurie, the defendant was arrested after police observed a drug transaction in a car. At the police station, police noticed an incoming call on Wurie’s phone from “my house.” They accessed his call log and traced the number to Wurie’s residence. Police obtained a search warrant and found drugs, guns, ammunition, and cash. The trial court denied defendant’s motion to suppress. The First Circuit reversed the denial, suppressed the evidence, and vacated the conviction. Certiorari was granted by the Supreme Court in both cases.

Fourth Amendment Warrant Requirement

The Fourth Amendment grants a right to privacy in our homes, papers, and effects by restricting the government from performing unreasonable searches and seizures. A warrant, supported by probable cause, is generally required for a search. However, there are numerous exceptions to the search warrant requirement that have been enumerated by the Supreme Court over the years. One of those warrant exceptions is a search incident to arrest. When placed under arrest, the police may search your clothes and artifacts in order to protect the police from anything harmful the arrestee may have and to prevent the destruction of evidence. Also, the police will often keep an inventory of everything recovered in order to protect the department from civil suits from defendants who may claim the police lost, stole, or damaged their property.

Balancing Test—Privacy vs Governmental Interest

The search incident to arrest is limited to the area immediately within the arrestee’s control. Such a warrantless search is justified by balancing the interests in the officer’s safety versus the legitimate governmental interests. The governmental interest being the aforementioned safety of the officer and to prevent the destruction of evidence.

SCOTUS: Cell Phones are Unique and Different from Most Physical Objects

The Supreme Court correctly recognized that cell phones are unique and vastly different than most physical objects that may be recovered on an arrestee’s person. Cell phones are essentially minicomputers that also operate as a phone. They contain tons of pages of text, information, pictures, videos, etc. due to their high storage capacity. Cell phones keep records of nearly every aspect of our lives.

The justices noted that digital data cannot be used as a weapon against the police or to help the arrestee escape. The police can certainly examine the physical aspect of the phone to ensure that it will not be used as a weapon, but not the digital information. The justices did not agree with any of the government’s arguments.

The government argued that searching a phone could protect the officer’s safety by looking for warnings that the arrestee’s confederates were coming to the scene. SCOTUS held that this type of argument is best left to a case-by-case basis under an exigent circumstances analysis. The government further argued that cell phones are susceptible to remote wiping and data encryption, so searching through them will preserve any evidence that may be lost or destroyed. The justices stated that not only was this broad concern not proven to be prevalent, but that having the police search through the phone would be an adequate solution.

Cell Phone Data is not Subject to Search Incident to Arrest

The Supreme Court refused to form a hybrid rule, or compromise, offered by the government. The government proposed that the Court could limit the holding so that police officers could only search phone data for relevant information pertaining to the crime the defendant was arrested for. The Court declined this as well. Instead, the Supreme Court stood firm on the principles of the Fourth Amendment and held that we the people have a right to privacy in our cell phone data. The police cannot search through your phone simply because you are arrested. If they believe the phone contains relevant information of a crime, they will need to cite probable cause to a judge or magistrate and get a warrant. As it should be. Our founding fathers would be proud.

Lansing Michigan Criminal Defense Attorney

If you are facing criminal charges and believe your Fourth Amendment rights have been violated or you are the victim of an unreasonable search and seizure, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan Fourth Amendment lawyer for a free consultation!

Defending criminal charges, Fourth Amendment, and other Constitutional rights throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Kent, Calhoun, Kalamazoo in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, Kalamazoo, Battle Creek, Charlotte, St. Johns, Grand Rapids.

Withdrawing Your Guilty Plea

Withdraw Plea 2

Lansing Michigan Criminal Defense Attorney

I often receive calls from clients who have entered a guilty or no contest plea and now want to withdraw their plea and go back to the drawing board. Is it possible to withdraw your plea? It is, but it’s not easy. It widely depends on whether you have already been sentenced and your reasons for wanting to withdraw your guilty plea.

Do I Have an Automatic Right to Withdraw my Guilty Plea?

Generally the answer is “no,” you do not have an automatic right to withdraw your plea. Until recently, the Michigan Court Rules allowed a defendant an automatic right to withdraw their plea if the sentencing judge chose not to honor a sentencing agreement or recommendation (Killebrew and Cobbs agreements). However, the court rules were modified this year that a defendant no longer has an automatic right to withdraw his plea if that happens. Although, it has been my experience that most judges still present the defendant with this option if that occurs.

Withdrawing Your Plea Before Sentencing

One thing is certain: it is easier to withdraw your plea before sentencing as opposed to after sentencing. Do not confuse easier with easy. A defendant cannot simply withdraw his plea because he has “buyer’s remorse.” In other words, if a defendant decides he is dissatisfied with the deal, believes he could have gotten a better deal, or decides he wants to take the matter to trial, the court will not let him to withdraw his plea. A defendant’s true motive and concern must be something other than a sentencing. If the court were to be so liberal in allowing defendants to withdraw pleas, it would create havoc on court dockets and there would be no sense of finality to virtually any case.

The court should allow a defendant to withdraw his plea before sentencing unless the prosecutor would be prejudiced by not being able to prosecute the defendant because of the reliance on the plea. Most successful plea withdrawals are due to procedural errors in the plea taking process. That is why it is important to have an experienced Michigan criminal defense attorney thoroughly review the plea transcripts to determine if the court rules and procedures were properly followed. Absent a procedural error, the defendant would have to show a “fair and just reason” for withdrawing the plea and that it would be “in the interests of justice.” If his attorney did not properly advise him of the consequences of his plea, that could make the plea not knowing, voluntary, and understanding which is required by the court rules.

If the defendant asserted his innocence before the plea, the court should view the request more liberally. Although it isn’t a requirement, a lot of courts will view a request to withdraw a plea more liberally if the defendant was not represented by a lawyer when he made the plea. However, not all judges will give that deference.

Withdrawing a Plea After Sentencing

Withdrawing a plea after sentencing is a much higher obstacle to clear. Under Michigan Court Rule 6.310, a defendant has up to six months to file a motion to withdraw a plea after sentencing with the trial court. After that, any relief he seeks will have to be in the Court of Appeals. Usually these motions arise when there is “newly discovered evidence” or evidence of Defendant’s “actual innocence.”

Lansing Michigan Criminal Defense Attorney

Withdrawing a plea is not an easy task. It may not even be in your best interest to try because even if successful, that means you start from scratch and could end up with a worse outcome than before. To determine if you are eligible to withdraw your plea or if it is in your best interest, contact Austin Legal Services, PLC to speak to a Michigan criminal defense lawyer today at (517) 614-1983.

Defending felony and misdemeanor criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Livingston, Jackson, Kent, Calhoun, Barry in the cities of Lansing, East Lansing, Mason, Jackson, St. Johns, Brighton, Howell, Jackson, Grand Rapids, Battle Creek, Hastings.

Drugged Driving: Operating with the Presence of a Controlled Substance (OWPCS)

Drugged Driving

Lansing Michigan OWI Drugged Driving Attorney

Under the general DUI/OWI umbrella are categories of drugged driving. Not only can you be charged for operating a motor vehicle while under the influence of alcohol or driving with an unlawful blood alcohol content, but you can be charged for driving under the influence of controlled substances (cocaine, marijuana…) or prescription medicine. The standards are different in that the prosecutor does not have to prove an arbitrary amount of drugs in your system like the .08 BAC standard for OWI. Instead, the prosecutor only has to prove that you were operating a vehicle with any amount of a controlled substance.

Zero Tolerance: Driving with any Amount of a Controlled Substance

A person may not operator a vehicle on a public roadway if there is any amount of a Schedule I controlled substance under MCL 333.7212 or MCL 333.7214(a)(iv). This includes marijuana. It is a “zero tolerance” policy towards driving with any presence of a controlled substance regardless of whether it impacts your ability to drive. Even if it is a residual from a few days or even weeks prior (marijuana can stay in the system for up to a month) it doesn’t matter.

Schedule I Controlled Substances

Schedule I controlled substances include opiates, opium derivatives, hallucinogens, gammahydroxyutyic acid (GHB), ecstasy, and marijuana.

Michigan Medical Marijuana Card Patients

A licensed medical marijuana patient may drive as long as they are not “under the influence” of marijuana according to the Michigan Medical Marijuana Act (MMMA). The problem is the legislature didn’t clarify what they meant by “under the influence.” For example, Washington defined it in their DUI statute as having 10ng/THC per 100ml/blood. This created an apparent conflict with the OWI statute as it defines “under the influence” of marijuana as having any amount of marijuana in your system. The Michigan Supreme Court stepped into the role of the legislature and declared that the medical marijuana patients could drive as long as it does not substantially interfere with their ability to safely operate a car. That is what the prosecutor has to prove if a medical marijuana patient is charged with OWI or drugged driving.

Other Intoxicating Substances

On March 31, 2013 the statute was amended to include “other intoxicating substances.” That means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either of the following:

  • Recognized as a drug in any of the following publications or their supplements: official US pharmacopeia, official homeopathy pharmacopeia of US, official national formulary
  • Substance other than food, taken into a person’s body including but not limited to: vapors or fumes that are used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication

OWPCS is unique in OWI cases as it does not require proof of “under the influence”—a long-standing foundation of drunk driving law.

Penalties for OWPCS

The penalties for OWPCS are the same as the OWI penalties with the exception that the driver responsibility fees are lower. If convicted a defendant faces up to 93 days in jail $500 in fines plus court and police costs, one-year probation, six points on your driving record, 180 days suspended license (first 30 days a “hard suspension”—no driving, with restrictions for the remainder 150 days), and $1,000 in driver responsibility fees ($500/year for two consecutive years).

Michigan Drugged Driving Attorney

If you have been charged with drugged driving or OWPCS, you need the representation of an experienced OWI attorney who will thoroughly evaluate every aspect of the case including the initial police contact, blood draws, and administration of any field sobriety tests. If you have been charged with any DUI offense contact Austin Legal Services, PLC today to speak to a Michigan OWI attorney.

Representing OWI, drugged driving, and OWPCS charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Shiawassee, Genesee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

Bond Conditions and Pretrial Release

Arraignment 2

Lansing Michigan Criminal Defense Lawyer

Once your bond amount and type of bond has been determined by the judge or magistrate at your arraignment, the court will also give you a list of pretrial conditions or terms of your bond that must be strictly followed or else you risk getting your bond revoked.

Pretrial Release and Bond Conditions

Whether charged with a misdemeanor or felony, most courts will impose standard bond conditions during your pretrial release. Depending upon the specific case and type of charge, the court may set some additional bond conditions specifically tailored towards your case. Here are a list of some of the most typical bond terms you can expect:

  • Attend all court dates and court-mandated activities
  • Don’t use drugs or alcohol or any prescription medicine without a doctor’s approval
  • Don’t leave the state without the court’s permission
  • Reported to pretrial services as directed
  • Random or scheduled drug or alcohol testing (often for drug or alcohol-related cases or cases that allege the use of drugs or alcohol)
  • Notify the court of any changes in your address or telephone number
  • Do not possess weapons
  • Maintain a curfew (usually for minors or young adults)
  • Tether or GPS monitoring device (some judges will require as a condition before you can be released, especially for serious or violent felonies)
  • No-contact orders (defendant will be ordered not to have contact with victims, especially in violent cases such as assault and battery, domestic violence)

Again, this is just a general overview of some of the most common bond and pretrial release conditions. Your case may not include all of these or the judge may impose some others depending on the specific facts of your case.

What Factors Does the Court Consider in Determining Your Bond

  • The seriousness of the offense
  • Ties to the community (family, children, job)
  • How long has the defendant lived at his current residence
  • Has the defendant ever failed to appear in court before
  • Defendant’s finances
  • Employment
  • The likelihood that defendant will comply with the terms of his release
  • Substance abuse
  • Mental health
  • Reputation for Danger
  • Probability of conviction and likely sentence

Do I Need a Bail Bondsman?

There are pros and cons of using a bail bondsman. The pro is that they can get you out quicker and usually for a lower amount that what you would have to post through the court. Using a bail bondsman is ideal if you cannot post the bond amount yourself. The con is that you do not get that money back, even if your case is dismissed or you are found not guilty. If you post bond through the court, that money will be applied towards your fines and court costs if convicted. That way it is not really “wasted” in the same sense as posting through a bondsman. Also, if you win your case, you will get 90% of the money you posted back from the court.

Do I Need an Attorney at Arraignment?

It is always a good idea to have an attorney represent you at arraignment, especially if charged with a felony. An experienced Michigan criminal defense attorney knows the factors to argue before the judge or magistrate to get a reasonable bond amount set or a PR bond and reasonable bond conditions. Your attorney may be able to get your arraignment waived if facing misdemeanor charges. This can be helpful as often when you appear for an open arraignment on OWI or marijuana charges the court may impose additional conditions such as drug or alcohol testing.

Arraignment is a critical stage because you only get one initial chance to argue for bond. Otherwise, your attorney will have to file motions for a bond reductions or condition modifications which takes time and may not be granted. Contact Austin Legal Services, PLC to speak to a Michigan pretrial release and arraignment attorney at (517) 614-1983 today!

Defending felony and misdemeanor criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Kent, Calhoun in the cites of Lansing, East Lansing, Mason, St. Johns, Charlotte, Brighton, Howell, Jackson, Grand Rapids, Ithaca, Battle Creek.

Arraignments and Bond

Arraignment 1

Lansing Michigan Criminal Defense Attorney

If you are arrested or charged with a crime, the first time you appear in court will be the arraignment. You will appear before a judge or magistrate who will read the charges against you, the maximum penalties, and the rights you have. If charged with a felony you are entitled to be represented by an attorney. If you cannot afford to hire your own lawyer the court will appoint you one at a reduced cost or no cost. If charged with a misdemeanor you are not entitled to a court-appointed attorney unless the charge requires a mandatory jail sentence or the judge thinks it is likely you will be given some jail time if convicted. The court will require you to fill out paperwork listing your income, liabilities, and assets to determine if you meet the eligibility for a court-appointed lawyer. You will also receive notice of your next court dates. The stages and proceedings depend on whether you are charged with a misdemeanor or felony.

Setting Bond

At your arraignment the judge or magistrate will set your bond. The purpose of bond is to ensure that the defendant will show up for future court dates. The court will determine what type of bond you have and the bond amount.

Types of Bond

There are four types of bonds: surety bond, ten percent bond, a full cash bond, and personal recognizance.

  1. Surety Bond—If you cannot afford to post the entire bond amount, a bail bondsmen or bonding company will make a contract with the court guaranteeing the defendant will appear for court dates. The bail bondsmen will require the defendant to post a percentage of the entire bond amount upfront (usually 10% or so).
  2. Ten Percent Bond—There are a couple ways a ten percent bond works. One is when you post 10% of the bond amount to the court or jail. For example, if you bond is $20,000 you would need to post $2,000. The other option is going through a bail bondsmen. You would need to post 25% of that amount with the bondsmen to get released. In other words, you would only have to pay $500 upfront to the bondsmen in the above example. That leaves more money to hire a lawyer.
  3. Full Cash Bond—This is when the entire bond amount must be posted before defendant can be released. A true full cash bond is rare as Michigan law and the Michigan constitution require a defendant to have a surety option unless the defendant has been convicted of the charge, failed to attend a pre-sentencing hearing, or failed to attend sentencing. Full cash bonds are for defendants who pose a high flight risk.
  4. Personal Recognizance—Known as a PR bond, you are not required to post any money upfront. These are generally given for low severity crimes (misdemeanors) and when the defendant is not a flight risk. A bond amount is given but the defendant does not have to post it upfront. The defendant would only be liable for the bond amount if he failed to appear for any court dates.

Bond can be denied for very serious offenses such as murder. You may also be required to put up some collateral if going through a bondsman. Some bond schedules are pre-determined on a bail schedule list, even for felonies. That way if you get arrested the schedule will be at the jail so you know how much you need to post to get released. A lot of misdemeanor arraignments can be waived with the filing of a written waiver of arraignment stating that you know what you are charged with and the maximum penalties. Check with the court in your jurisdiction to determine if that is an option.

If you are charged with a crime it is important to be represented by an experienced criminal defense lawyer at arraignment to effectively argue for a reasonable bond and bond conditions. Arraignment is a critical stage because you only get one initial chance to argue for bond. Otherwise, your attorney will have to file motions for a bond reductions or modifications in the conditions which takes time and may not be granted. Contact Austin Legal Services, PLC to speak to a Michigan pre-trial arraignment attorney at (517) 614-1983 today!

Defending felony and misdemeanor criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Livingston, Jackson, Kent, Calhoun in the cites of Lansing, East Lansing, Mason, St. Johns, Charlotte, Brighton, Howell, Jackson, Grand Rapids, Battle Creek.