Changes in Michigan’s Preliminary Exams

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Lansing Michigan Criminal Defense Attorney

Under Michigan law a person charged with a felony is entitled to a preliminary examination or a probable cause hearing at the district court. The prosecutor must show probable cause that a felony was committed and probable cause that the defendant committed it in order to bind the case over to the circuit court for trial. New legislation went into effect in January, 2015 amending some of the procedural and time requirements for preliminary exams. This article discusses those changes and how it effects your rights as an accused.

Mandatory Probable Cause Conference

A probable cause or pre-exam conference is like a pretrial conference. It is a meeting between the defense attorney and prosecutor to discuss your case. This is where the parties will decide if they are going to have the preliminary exam, waive the preliminary exam (the case will automatically proceed to the circuit court), adjourn the prelim to another date, or settle the case at the district court with a misdemeanor plea. Although these conferences are now mandatory, nearly every court in the state had them prior to this amendment. The probable cause conference must occur within seven to 14 days after your arraignment. Although this probable cause conference is mandated by statute, it can be waived if all the parties agree.

Preliminary Examination

Also known as the preliminary exam or simply the prelim. Under the old system, the preliminary exam had to be held within 14 days of being arraigned. Under the new system it must be held within five to seven days after the probable cause conference unless the parties agree to an earlier date. This new system does a couple of things: 1) it pushes the prelim out an extra week or so, and 2) it gives the defense attorney more time to prepare between the pre-exam conference and the prelim as most courts would hold the pre-exam conferences two to three days prior to the prelim and in some cases the day before.

Adjourning the Preliminary Exam

Under the old law the preliminary exam could only be adjourned or delayed for “good cause.” Now the prelim can be adjourned without a showing a good cause if the parties agree. The district court judge can adjourn the prelim without consent of the parties upon a showing of good cause.

Can a Witness Testify by Phone or Video at a Prelim?

The judge must now allow certain witnesses to testify either by telephone or video upon a motion of either party (under the old system the judge had discretion). However, some witnesses cannot testify by phone or video and must testify in person. The following witnesses must testify at the prelim in person:

  • Complaining witness
  • Alleged eye witness
  • Law enforcement officer to whom the defendant made an incriminating statement.

Do the Rules of Evidence Apply at a Preliminary Exam?

Under the old system the standard rules of evidence did apply at a preliminary exam. There were some exceptions. For example, hearsay was allowed to show ownership of property, a notarized forensic report could be admitted in lieu of live testimony. That list has been expanded to include several types of medical and police reports that can be admitted without requiring the author of the report to testify in person, any foundation to be laid, or authentication proven. The following is a list of such documents:

  • Results of a drug field test
  • Certified copy of judgment, register of actions, governmental agency record
  • Reports (other than law enforcement) kept in the ordinary course of business
  • Forensic science reports
  • Lab reports
  • Medical reports
  • Arson reports
  • Autopsy reports

However, the judge must allow the prosecutor or defense counsel to subpoena and call witnesses from whom hearsay testimony was introduced on a satisfactory showing that live testimony will be relevant.

Lansing Michigan Criminal Defense Attorney

Criminal procedure is very complex and changes frequently. You need to be represented by an attorney that predominantly practices criminal defense to help prepare your case, decide whether to run or waive the prelim, and to help you navigate through the criminal justice system. If you have been charged with a misdemeanor or felony or have a preliminary exam scheduled, contact Austin Legal Services, PLC to speak to a Michigan criminal defense lawyer today at (517) 614-1983!

Defending adults and juveniles charged with misdemeanors and felonies throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Kent, Jackson, Shiawassee, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Howell, Brighton, Grand Rapids, Jackson, Corunna, Ann Arbor. 

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.

Insanity Defenses

 

Insanity Defense

Lansing Michigan Insanity Defense Criminal Lawyer

If charged with a crime, you may be able to use insanity as a defense to the crime if you lacked the mental capacity to realize what you were doing was wrong and you could not conform your behavior to the standards of the law. Despite its frequent depiction in movies and pop culture as a common tool by the defense in criminal trials, in real life it rarely happens. It is even rarer to use it successfully. A defendant that has a mental health history, is being treated with psychotropic medications, or lacks memory of the events that occurred should discuss the possibility of an insanity defense with an experienced Michigan criminal defense attorney as a possible plea option or trial strategy.

Legal Insanity

The definition that law uses for legal insanity is different than what we might think it would be. A defendant is considered legally insane if he suffered from significant mental health problems at the time the charged offense occurred. It means the defendant is not capable of forming the intent necessary to be found guilty of crimes, specifically those that require a specific intent element. Insanity is a complete defense and a successful insanity defense means the defendant is acquitted. However, that does not mean he is completely let go and off the hook.

It is defined under the Mental Health Code as someone who because of mental illness or mental retardation “lacks substantial capacity either to appreciate the nature and quality of the wrongfulness of his conduct, or conform his conduct to the requirements of the law.” Insanity is a substantial thought or mood disorder that impairs a person’s judgment, behavior, or capacity to recognize reality or cope with the ordinary demands of life. Retardation refers to significantly sub-average intellectual functioning. If either of these exist and made it so a person cannot understand that his actions are wrong, he may be found not guilty by reason of insanity.

Diminished Capacity and Guilty but Mentally Ill

Diminished capacity is a “mental abnormality less severe than insanity.” It is still used by many jurisdictions. The Michigan Supreme Court nixed diminished capacity as a possible defense in 2011 so it is no longer an option in Michigan. Although, mental conditions at the time of the offense can still be relevant in many ways. Guilty but Mentally Ill is another plea option. It is different than the standard insanity defense as it is not a defense to the crime; the defendant is still found guilty and can be imprisoned. The only benefit is that the Department of Corrections has the option to give the inmate special accommodations for mental health treatment and any confinement in a mental health facility will count towards his prison sentence.

Notice of Special Defense

Insanity is a special defense that the defendant must give advance notice of using both to the court and the prosecutor. There will be a mandatory psychiatric evaluation, usually at the Forensic Center for Psychiatry around Ypsilanti, Michigan. The defendant should also provide a list of doctors who will testify as well as any previous diagnosis and mental health history. Not Guilty by Reason of Insanity (NGRI) is an affirmative defense, meaning it is a rare instance in which the defendant has a burden of proof. Normally a defendant is not required to prove or disprove anything. Affirmative or special defenses must be proven by a preponderance of the evidence. It is a low standard that is usually reserved for civil cases.

If the defendant disagrees with the findings of the Forensic Center, the defendant may petition the judge for another independent evaluation or the defense may hire their own expert to conduct a forensic evaluation. The prosecution is entitled to seek another independent evaluation of the defendant as well upon motion to the judge if they disagree with the findings of the Forensic Center.

What Happens If a Defendant is Found Not Guilty by Reason of Insanity?

Despite the popular misconceptions, a defendant that is found not guilty by reason of insanity is not let off the hook and free to go back out into society. Far from it. After a successful insanity defense, the defendant must immediately report to the Forensic Center (where the initial evaluation took place) for a period of 30 days. During this period the defendant will be observed, monitored, and treated to see if he is safe to re-enter society. If the Forensic Center does not feel the defendant is mentally stable to come out, they must petition the court and state the reasons why. A court hearing will be ordered and the probate judge will make the decision on whether to keep or release the defendant. If the judge decides the defendant shall remain in the Forensic Center or some other facility, the judge will determine the length of the new period and schedule a review hearing. Once a successful insanity plea is entered, the jurisdiction of the defendant is transferred from the criminal court to the probate court.

The insanity defense is very complex and quite confusing. It can only be raised as a defense at trial if the court allows it. The problem with the insanity defense as many potential jurors do not realize that finding a defendant not guilty by reason of insanity does not mean they are thrusting a crazy person back out into society. A lot of jurors may be leery of voting not guilty by reason of insanity for that reason. The problem is that defense attorneys cannot inform the jury that there is a mandatory evaluation period by law that the judge has no discretion over. It is possible that some defendants may end up in a mental hospital for many years, even longer than the jail or prison sentence could be for the crime they were charged with. Some may even stay there for the rest of their lives. There has been a public outcry and backlash against the insanity defense since John Hinckley, Jr. successfully used the defense for his attempted assassination of President Reagan.

Michigan Insanity Defense Attorney

If you have been charged with a crime, you need to discuss the possibility of an insanity defense and other options with an experienced Michigan criminal defense attorney. Call Austin Legal Services, PLC today at (517) 614-1983 for a free consultation.

Defending misdemeanor and felony criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kalamazoo, Jackson, Livingston, Washtenaw, Kent, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Battle Creek, Brighton, Howell, Ann Arbor, Grand Rapids, Corunna, Durand, Kalamazoo, Jackson.

Michigan’s Fake ID Laws and Penalties

Fake IDs

Lansing Michigan Fake Fraudulent ID Defense Attorney

Many find out the hard way that getting caught with or using a fake ID is not a slap on the wrist. A lot of young adults and college students find out after it’s too late. The penalties for having or using fake IDs vary depending on how many the person possessed and for what purpose they had them or were using them. Do not confuse fake IDs with identity theft which involves using someone else’s identity to purchase things or receive money.

Defining a Fake ID

The main statute covering fake IDs is MCL 28.295. It states that no one shall intentionally reproduce, alter, counterfeit, forge, or duplicate an official state identification card or driver’s license or use an official state identification card that has been reproduced, altered, counterfeited, forged or duplicated.

Penalties for Fake IDs

Possession or Possession with the Intent to Sell

  • Possession of a fake ID with the intent to commit a felony punishable by 10 years or more— a felony punishable by up to 10 years in prison and/or $20,000 in fines
  • Possession of a fake ID with the intent to commit a felony punishable by less than 10 years or a misdemeanor punishable by six months or more—a felony punishable by up to five years in prison and/or $10,000 in fines
  • Possession of a fake ID with the intent to commit a misdemeanor punishable by less than six months—a misdemeanor punishable by up to one year in jail and/or $2,000 in fines
  • Possession of two or more fake IDs, possession with the intent to sale a fake ID, or selling a fake ID—a felony punishable by up to five  years in prison and/or $10,000 in fines
  • Possession of one fake ID—a misdemeanor punishable by up to one year in jail and/or $2,000 in fines

Stealing the ID of another or using a stolen ID card—a misdemeanor punishable by up to one year in jail

Using a Stolen ID to Commit a Felony—a felony punishable by the maximum amounts of the felony that was committed

Using a Fake ID to Purchase Alcohol—a misdemeanor punishable by up to 93 days in jail and/or $100 in fines. Commonly occurs with minor in possession of alcohol charges.

Defenses to Fake ID Charges

  • Lack of Intent—these charges are “specific intent” crimes meaning the defendant must intentionally possess the fake IDs or have the intention of committing a crime with the fake IDs if the subsection requires it.
  • Legitimate Business Purpose—a defendant cannot be convicted if the fake IDs were possessed for legitimate business purposes.

Possession of a Fake Credit Card—Under MCL 750.157n(2) anyone who knowingly possesses a fraudulent or altered financial transaction device (credit card, debit card, ATM card) is guilty of a felony punishable by up to four years in prison and/or $5,000 in fines. This is separate from credit card fraud that involves using, possessing, or secreting information from someone else’s credit card without their permission.

Michigan Fake ID Defense Lawyer

Using, possessing, or selling fake IDs can have serious consequences. If you have been charged with any offense involving a fake ID or fake credit card, contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan criminal defense attorney today!

Defending fake ID charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Washtenaw, Jackson, Kent, Barry, Kalamazoo, Calhoun, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Ann Arbor, Jackson, Grand Rapids, Hastings, Kalamazoo, Battle Creek, Corunna, Durand. 

Diversion Programs and Delayed Sentences

Diversion Program

Lansing Michigan Criminal Defense Attorney

When convicted of a crime, it will remain on your record forever. Usually. The good news is that not everyone has to worry about having their career or future ruined because of one bad choice or an error in judgment. The Michigan legislature has recognized that some people deserve a second chance and shouldn’t have their clean slate tarnished for every future employer to see. There are some ways you can keep a criminal conviction off your record. Some only apply to certain ages or certain offenses. These are known as diversion programs and deferred or delayed sentencing.

Diversion Programs

Diversion programs are a way for defendants to keep a criminal matter off their public record without having to plead guilty or go to trial. They are usually for low level offenses such as misdemeanors and non-violent felonies. Each court has its own criteria for diversion. There will be limits as to the types of offenses that are permitted and there may be residency requirements. The programs are usually reserved for first-time offenders. It is not an expungement, which is removing a conviction from your record after it has been on your record for a period of time. Diversion programs and delayed sentencings are better than expungements because if successful, the file is suppressed (non-public) from the beginning.

The way it works is that the prosecutor will dismiss your case without prejudice (meaning it can be re-filed) upon the contingency that you successfully complete the diversion program. Again, each court is different but it usually involves classes, fines, and community service. The length of the diversion and the types of class you participate in are determined by the type of offense. If you successfully complete diversion, the prosecutor will not re-file the charges and the matter will not appear on your public record. Diversion is frequently used for shoplifting or retail fraud, theft offenses, and sometimes non-violent felonies. An experienced Michigan criminal defense attorney that is familiar with your court should be able to tell you if you are eligible for diversion and can help you get in.

Holmes Youthful Trainee Act (HYTA)

The Youthful Trainee Act (HYTA or YTA) is a special sentencing option available to defendants who commit crimes between the ages of 17 and 24. The age requirements are strict. If you commit a crime at 12:01 a.m. on your 24th birthday, you are not eligible. Not every offense is eligible for HYTA either. Youthful Trainee Status cannot be given for any offense that has a potential life sentence (murder, armed robbery), criminal sexual conduct, a major controlled substance offense (drug dealing or possession with intent to deliver), or a traffic offense (OWI, Reckless Driving). Also, if the offense occurs between the ages of 21 and 24 the prosecutor must agree to HYTA or else the judge has no authority to grant it. Upon successful completion of your sentence, you will not have a public record of the offense. You must plead guilty in order to get HYTA, meaning you cannot receive it by pleading no contest or by being found guilty at trial. You can receive it more than once, but be wary that many judges are reluctant to give it multiple times.

7411 for First Offense Use or Possession of Controlled Substance

Under MCL 333.7411, you can receive a deferred conviction for possession of a controlled substance or use of a controlled substance. In other words, it only applies to drug use or drug possession. It cannot be given for any other controlled substance offense such as maintaining a drug house, possession with intent to deliver, etc. There is no age requirement but the caveat is it can only be granted once in your lifetime. Like HYTA, upon successful completion of your sentence (usually probation) you will not have a public record of the offense. Not only does it keep your record clean, but it prevents the mandatory driver’s license sanctions as well. You maintain a clean slate and keep your license. Unlike HYTA, you do not necessarily have to plead guilty to get 7411. You can request it if you have been found guilty at trial. However, be aware that many judges are hesitant to do so, especially if the prosecutor was agreeing not to object to your 7411 petition as an enticement for pleading guilty. It’s a risk you take.

769.4a for Domestic Violence Charges

Under MCL 769.4a, you can receive a deferred sentence for a domestic violence conviction provided that you have no prior assault convictions. Probation is the usual sentence but there could be some jail. Often you will have to take some sort of anger management classes or alcohol or drug treatment if they believe that is a problem. Like HYTA and 7411, you will have no public record of the offense if you successfully complete your sentence. Like 7411, you only get to use it once.

Minor in Possession of Alcohol (MIP)

For first offense MIP charges, a defendant can be granted a deferred sentence under statute, meaning he will not have a public record upon successful completion of probation which could include community service, alcohol prevention programs, and an alcohol substance abuse assessment. It can only be granted once.

Delayed Sentence

If you are eligible and the prosecutor and judge both agree, the sentence on your conviction may be delayed up to a year. In the meantime, you will be placed on probation under standard bond or probation conditions. After the year is up, you come back to court and your conviction can either be reduced to a lesser charge (misdemeanor or civil infraction) or in some cases completely dismissed, depending on what your agreement was. It is also commonly used in failure to pay child support cases.

Again, this is usually for first time offenders who are given on opportunity to show the court they are not likely to reoffend or commit crimes. You cannot get a delayed sentence for murder, treason, criminal sexual conduct in the first or third degrees, a major controlled substance offense, or armed robbery.

Michigan Sentencing Attorney

If you are charged with a crime, there may be options available to you that could keep your record clean. That means you can honestly tell future employers, colleges, and landlords that you have not been convicted of a crime. Michigan even has a law preventing employers from asking potential employees about misdemeanor convictions that have been diverted or deferred. This is something to discuss with your Michigan criminal defense lawyer if you find yourself being accused of a crime. A bad decision does not have to place an eternal scar on your record. If facing criminal charges, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense attorney!

 

Defending criminal charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Shiawassee, Livingston, Kent, Washtenaw, Barry in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, St. Johns, Ithaca, Grand Rapids, Ann Arbor, Hastings, Corunna, Durand.

Supreme Court Allows Traffic Stops and Search of Vehicles Based on Uncorroborated Anonymous Call

SCOTUS

Lansing Michigan Criminal Defense Attorney

Last month in the case of Navarette v California[i], SCOTUS (Supreme Court of the United States) held that the police can pull your car over based on an anonymous tip without any independent corroboration by the police that the driver or occupants of the car are engaging in illegal activity. While it is too early to see the full effects of this decision, I can clearly see this being used as a license to harass a motorist by someone who has a grudge against said motorist.

For example, if you know the make, model, and license plate of someone’s car and know the direction they are traveling, you can call in to every police station and patrol post on the way and accuse them of erratic driving and have them pulled over and detained. Possibly searched. At least, according to the majority opinion in Navarette. This is a frightening decision for those who are concerned about civil liberties.

Facts of the Case

In Navarette, someone called 911 to state that a truck had just run her off the road. The caller gave the color and make, model, and license plate of the truck and the direction of where the truck was traveling on a particular road. Police officers located this vehicle, followed it for five minutes and after witnessing no erratic driving or any other violation of the motor vehicle code, initiated a traffic stop. After approaching the vehicle and detecting an odor of marijuana, the officers searched the truck and located 30 pounds of marijuana. Charged with a serious felony of manufacturing and delivering marijuana, the defendants moved to suppress the evidence citing that the police had no reasonable suspicion that the occupants of the vehicle were doing anything illegal and an anonymous phone call[ii] to the police, absent any independent corroboration, is insufficient and does not give the police reasonable suspicion to stop the vehicle. The trial court denied the motion and the Court of Appeals upheld the decision. The Supreme Court refused to hear the case so defendants appealed to the United States Supreme Court.

Case Law on Fourth Amendment, Traffic Stops, and Anonymous Tips

The Fourth Amendment allows brief investigative stops (traffic stops) when there is a “particularized objective basis for suspecting the particular person of criminal activity.”[iii] Reasonable suspicion necessary to justify a stop “is dependent upon both content of information possessed by the police and its degree of reliability.”[iv] This standard takes into account the “totality of the circumstances”—the whole picture.[v] Although a mere “hunch” does not create “reasonable suspicion[vi], the level of suspicion that is required is “considerably less than proof of wrongdoing by a preponderance of the evidence and obviously less than is required for probable cause.[vii]

Anonymous Tip Cases

Before Navarette, the two main anonymous tip cases were Alabama v White[viii] and Florida v JL[ix]. In White, the police received a tip that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken tail light transporting cocaine. Officers observed just what the caller had indicated, stopped the vehicle, and found cocaine. The Court reasoned in this case that the specific information coupled with the police corroboration, equaled reasonable suspicion of criminal activity. The tipster demonstrated a specific familiarity with the acts of the accused which made it reliable. In JL, police received a tip that a black male with a plaid shirt at a bus stop was carrying a gun. The caller provided no further explanation of how he knew this information nor offered any predictions of the accused’s future behavior. The Court reasoned that there was no reasonable suspicion in this case because the tip wasn’t specific enough and too barebones to be reliable.

Applying White and JL to Navarette

The five justice majority (consisting of justices Thomas, Roberts, Alito, Kennedy, and Breyer) relied on the specificity of the tip (vehicle description and location) and the specific behavior the vehicle allegedly engaged in. Combining that with the assumption (based on the call) that the driver of the truck was intoxicated and the public policy to protect motorists and pedestrians from drunk drivers, held that this gave the officers reasonable suspicion to stop the vehicle. The caller would be dissuaded from making false or fake phone calls due to the tracking information the 911 call centers possess. The five-minute observation period was meaningless because 1) the officers already had reasonable suspicion based on the tip and 2) an intoxicated driver noticing police in his rearview mirror would undoubtedly drive more cautious and conform his driving to normal safety standards.

Justice Scalia’s Scathing Dissent

Justice Scalia, almost always siding with the conservative wing of the court, found himself siding with the liberal wing and authored the minority opinion. He notes that an anonymous tip normally needs to be corroborated and while the police had no reason to credit the tip, they had many reasons to doubt it. They didn’t know the tipster’s name or even the location from where she was calling. The fact that the tip was anonymous is suspicious by itself. Wouldn’t a victim of a crime want to identify themselves so they can later testify or further aid the police? “[E]liminating accountability… is ordinarily the very purpose of anonymity.”[x] The unnamed tipster “can lie with impunity.”[xi]

In White, the caller predicted the target’s behavior in such fine detail that it could only have been known by someone familiar with the target’s business as very few people would have such intimate knowledge. In Navarette, the knowledge provided by the caller was generally available. Anyone on the same road that day would have been able to identify the color, make and model of the car, license plate, and direction of travel. The issue, after all, is not how she knew the information she claimed to know, but whether or not what she claimed to know was true.

Nothing from the tip asserted or even suggested the driver was intoxicated. At most, it conveyed that the truck did something atypical. The truck could have been swerving for a number of reasons other than intoxication—distracted by an unruly child, avoiding a pothole, animal, or pedestrian, cell phone distraction… The fact that the police followed the truck for five minutes and did nothing wrong in the time period was enough to dispel any belief (however weak) that the driver was drunk or continuing to engage in any unlawful behavior. Reasonable suspicion requires an ongoing crime. Driving while being a reckless or careless person is not ongoing like drunk driving.

Conclusion

SCOTUS has opened up a whole new wave for police stops. If a caller describes your car, traveling location, and accuses you of erratic driving, the police can stop your car and detain you. I do not think for a moment that this is what the Framers had envisioned when they drafted the Fourth Amendment. It strikes at the very heart of what the Bill of Rights and Fourth Amendment stands for. Like I stated earlier, this just gives license for people to have the police continually harass someone they have ought against. This ruling empowers the police and strips away at the very core freedom the Constitution seeks to protect—the right to be left alone from unwarranted government intrusion. The potential horror that this decision seeks to bring about will soon be unleashed.

 

Austin Legal Services, PLC is a Michigan criminal defense law firm protecting the rights of those accused of a crime. We defend weapons charges, drug crimes, DUI/OWI, sex crimes, assault crimes, and theft crimes throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Shiawassee, Livingston, Washtenaw, Kent, Calhoun, in the cities of Lansing, East Lansing, Mason, Jackson, Brighton, Howell, St. Johns, Ithaca, Battle Creek, Grand Rapids, Charlotte, Ann Arbor.

Call us today at (517) 614-1983 to speak to a Michigan criminal defense attorney for a free consultation.

 

 

[i] 572 US _____ (2014)

[ii] The record was clear that the caller did give her name when calling in, but this information was neither preserved nor given to the officers responding. Subsequently, the caller’s identification was lost and was treated as an “anonymous tip” since the police that pulled the car over never was given the caller’s name nor were they aware that the caller had left her name at the time they initiated the traffic stop.

[iii] US v Cortez, 449 US 411, 417-418 (1981); Terry v Ohio, 392 US 1, 21-22 (1968).

[iv] Alabama v White, 496 US 325, 330 (1990).

[v] Cortez, supra at 417.

[vi] Terry, supra at 27.

[vii] US v Sokolow, 490 US 1, 7 (1989).

[viii] 496 US 325 (1990)

[ix] 529 US 266 (2000)

[x] McIntyre v Ohio Elections Comm’n, 514 US 334, 385 (1995).

[xi] JL, supra at 275.

Felonious Assault (Assault with a Deadly or Dangerous Weapon)

Felonious Assault 1

Michigan Assault with a Deadly/Dangerous Weapon Defense Lawyer

 

Lansing Felonious Assault Defense Attorney

 

Felonious Assault, also known as Assault with a dangerous or deadly weapon, is when someone assaults another person with a weapon or dangerous object without the intent to murder them or without the intent to inflict great bodily harm.

 

What is an Assault

 

An assault is to touch someone in a harmful or offensive way or place a reasonable person in fear that you are about to touch them in a harmful or offensive way.

 

What is a Weapon or Dangerous Object

 

Some are obvious such as a gun, revolver, pistol, knife, iron bar, club, brass knuckles. It can also be an object that can be used as a weapon even if that it is not its intended use such as a crow bar or baseball bat.

 

Penalties

 

If convicted, you face up to four years in prison and up to $2,000 in fines. If it occurs in a “weapons free school zone” the maximum penalties increase to four years in prison, $6,000 in fines, and 150 hours of community service. If you are charged as an habitual offender, the penalties increase.

 

Defenses

 

  • Self Defense—You are allowed to use reasonable force necessary in defense of yourself or in defense of others.

 

  • Lack of Intent—Felonious Assault is a specific intent crime meaning the accused must have intended to inflict the assault on the person as opposed to it occurring through negligence or reckless behavior.

 

  • Consent—If the victim consents to the assault, the accused cannot be convicted.

 

  • Reasonable Doubt—If the facts of the case are so muddled or unclear as to what happened, who caused the assault, or who started the aggression, a jury cannot determine beyond a reasonable doubt that the accused is guilty.

 

  • Discredited Witness—The witness may have a prior history of making false allegations of assault or have a bias or personal vendetta against the accused.

 

Defending a Felonious Assault Case

 

A felonious assault charge is extremely serious and can have a devastating impact on your life including having a violent felony record, loss of or inability to get a concealed pistol license (CPL), and possible jail or prison time. If a sharp or jagged object is used, the charge can easily increase to Assault with Intent to do Great Bodily Harm Less than Murder with penalties up to 10 years in prison and $5,000 in fines. If you reject the initial plea offer, the prosecutor may insist on running the preliminary exam to attempt to increase the charges. Things can go from bad to worse in a hurry which is why you need an experienced criminal defense attorney on your side.

An attorney with experience defending assault charges will know what to look for. You may have a valid defense that can be raised or biases or a history of fabricating such claims of the complaining witness that can be brought out. There is also a fine line between felonious assault and assault with intent to do great bodily harm (GBH) and prosecutors will often overcharge in an attempt to force or scare defendants to pleading guilty to higher charges.

These types of cases are often based solely on witness testimony and many times there are no photographs of the injuries or medical reports because the complaining witness refused to seek medical attention. Sometimes the weapon itself isn’t photographed or taken into evidence.  In a desperate attempt to get a conviction or bolster a weak case, prosecutors may attempt to introduce evidence of prior assaults or claims that you have assaulted or fought other people. You need an aggressive and experienced criminal defense lawyer to challenge this evidence and keep it out. If not, the jury may be prejudiced and may convict you based upon your prior bad conduct instead basing their verdict solely on the evidence of the current charge.

 

A felonious assault charge is very complex and the stakes are high. If you are charged as an habitual offender, it gets much worse. That is why you need an experienced advocate on your side representing you every step of the way to get the best possible outcome. That may be working out a favorable plea deal to a lesser charge such as misdemeanor assault or disorderly conduct, getting the case dismissed, or representing you at trial.

 

If charged, call Austin Legal Services, PLC today at (517) 614-1983 to discuss your case with our Michigan felonious assault defense attorney.

 

Defending felonious assault and assault with a deadly or dangerous weapon charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Jackson, Livingston, Barry, Shiawassee, Gratiot, Genesee, Washtenaw in the cities of Lansing, East Lansing, Mason, Jackson, Howell, Brighton, Corunna, Bath, St. Johns, Ithaca, Hastings, Flint, Ann Arbor.