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

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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.

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. 

Felonious Assault (Assault with a Deadly or Dangerous Weapon)

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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.

Being Charged as an Habitual Offender

Habitual Offender Lansing Criminal Defense Lawyer

Habitual Offenders

 

Under Michigan law (MCL 769.13) a defendant can be charged as an habitual offender if he has been previously convicted of one or more felonies. If defendant has one prior felony conviction he be charged as an habitual second offender, if defendant has two prior felony convictions he can be charged as an habitual third offender, and if has three or more prior felonies he can be charged as an habitual fourth offender. These serve as sentencing enhancers and increase the maximum penalty for the underlying offense.

 

Sentencing Enhancers

 

Being charged as an habitual offender increases the possible maximum penalty for the main offense you are charged with. If charged as an habitual second offender– the maximum penalty is increased by 25%, habitual third offender– the maximum penalty is increased by 50%, habitual fourth offender– the maximum penalty is doubled or increased by 100%. For example, if you are charged with possession of cocaine, you normally face a maximum sentence of four years in prison. If charged as an habitual second offender, that penalty increases to six years, eight years as an habitual third offender, and 15 years as an habitual fourth offender. If the underlying offense you are charged with has a maximum penalty of 15 years or more and you are charged as an habitual fourth offender, it increases the maximum penalty to life in prison. Habitual offender notices can have a serious impact on the outcome of your case and plea negotiations.

 

Notice Requirement

 

Prosecutors are required by statute to give timely notice to the defendant that they will seek an enhanced sentence by adding the habitual offenses to the charge or charges in the complaint. The prosecutor must provide written notice of the intent to add habitual offense notices to the complaint within 21 days of the defendant being arraigned on the information or complaint. If the arraignment is waived, it must be filed within 21 days of the filing of the underlying offense.

 

Proving the Prior Conviction

 

If the defendant is disputing the validity of the prior offenses, upon filing a motion the defendant can request the court to require the prosecution to offer proof of the prior offenses by a preponderance of the evidence either at the time of or sometime prior to sentencing. This can be done in one of several ways:

 

  • A copy of the judgment of conviction
  • A transcript of a prior trial, plea hearing, or      sentencing
  • A copy of the register of actions
  • Information contained in a presentence      investigation report (PSI)
  • An admission by the defendant

 

Sometimes prosecutors receive inaccurate information such as a charge that was dismissed or pled down to a lesser charge or a charge that is incorrectly listed as a felony conviction. Sometimes convictions will get confused with a defendant with the same or similar name. Birth dates and criminal tracking numbers can be good ways to dispute those.

 

How Prior Offenses Effect Your Case

 

Being charged as an habitual offender effects your case in several ways. Not only does it make your case more severe by increasing the penalty, but it gives the prosecutor more bargaining power. For example, if you are charged with possession of cocaine, a lot of prosecutors will offer a plea to the lesser charge of cocaine use (a misdemeanor downgraded from a four-year felony) as an enticement to avoid trial. If the same defendant is charged with cocaine possession as an habitual offender, then the prosecutor can merely offer to drop the habitual offenses (“habs”) or lower the amount of habs and still plead guilty to the felony charge. Being charged as an habitual offender can often mean the difference from walking away with a felony or misdemeanor conviction. It makes negotiations much tougher. It also increases the likelihood of going to prison or going to prison much longer if you run the gambit of going to trial and lose.

 

What Type of Offenses Count for Habituals?

 

Any conviction for a felony or attempted felony counts. Even if the attempted felony is punishable by up to one year in jail. For example, there are several two-year felonies that can be pled down to one-year crimes but can be counted as an attempted felony for purposes of the habitual offender notices. The two-year felonies count as well.

 

Can out-of-state convictions be counted? Yes, they can. The problem arises sometimes when the punishment or classification isn’t identical to Michigan’s. For example, what may be a felony in Michigan may be a misdemeanor in another state or vice-versa. That makes it increasingly difficult, if not nearly impossible to decide if or how to charge the defendant. Many times prosecutors will simply not add the out-of-state convictions as habs in those instances because it’s too ripe for challenge.

 

Being charged with a felony is bad enough, but being charged as an habitual offender makes it much worse. That’s why it is more important than ever to have an experienced criminal attorney representing you to negotiate effectively or challenge the prior convictions or the notice of the prior conviction. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan criminal defense lawyer.

 

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