Providing Tobacco to a Minor

Tobacco

Lansing Michigan selling giving tobacco to a minor defense lawyer

It is a misdemeanor for any person to sell, give, or furnish a tobacco product to a minor. A minor is anyone under 18. There is no jail penalty but for each violation you can be fined up to $50.00. Retailers who sell tobacco products must conspicuously post in a place close to the point of sale a sign that says: “The purchase of tobacco products by a minor under 18 years of age and the provision of tobacco products to a minor are prohibited by law. A minor unlawfully purchasing or using tobacco products is subject to criminal penalties.” If the sign is more than six feet from the point of sale it must be 5 ½” x 8 ½” in 36-point boldfaced type. If the sign is less than six feet from the point of sale, then the sign must be 2” x 4” in 20-point boldfaced type. The Department of Community Health shall provide the signs and adequate copies.

Affirmative Defenses

An affirmative defense is a rare instance in criminal law. Normally the prosecutor has the sole burden of proof meaning that only the prosecutor has to prove his case. The defense is not required by law to prove or disprove anything and can literally sit at trial and not utter a single word. An affirmative defense is rare in that it requires the defendant to prove his defense, usually by a preponderance of the evidence. Affirmative defenses also require the defendant give notice to the prosecutor ahead of time that the defense plans on using a particular defense. This is also unusual as the defense normally does not have to disclose defenses or trial strategy, only give notice of witnesses they may call and evidence they may present.

If charged with providing tobacco to a minor as a retailer, it is an affirmative defense that at the time of the offense the defendant had in force and continues to have in force a written policy to prevent the sale of tobacco products to persons less than 18 years old and that the defendant enforced and continues to enforce such policy. The defense must provide notice of this affirmative defense to the prosecutor at least 14 days before trial.

Although not an affirmative defense, it is a defense to the charge if a minor was in possession of a tobacco product if required by and during the course of his employment.

Selling Tobacco to a Minor Defense Lawyer

If you have been charged with selling, giving, or furnishing tobacco to a minor you could be facing a criminal conviction as well as secondary fines and possibly a loss or suspension of your license to sell tobacco products if you are a retailer which could have a severe negative impact on your business. If you have been charged with selling or giving tobacco to a minor call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense lawyer!

Defending charges of selling, giving, or furnishing tobacco to a minor and other charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Calhoun, Kalamazoo, Barry, Kent in the cities of: Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Battle Creek, Grand Rapids, Hastings.

 

Various Michigan Firearm Laws

Firearm 2

Lansing Michigan Firearm Defense Lawyer

Among the most frequently prosecuted firearm laws are carrying a concealed weapon, a felon in possession of a firearm, and a firearm used in the commission of a felony (felony firearm). There are numerous other firearm laws and restrictions however, which I will discuss.

Transporting or Possessing a Firearm in or Upon a Motor Vehicle

Under MCL 750.227d, it is a crime for a person to transport or possess a firearm in or upon a motor vehicle. However, the law does allow some exceptions.  The law applies to firearms (other than pistols) and pneumatic guns that expels a metallic BB or metallic pellet greater than .177 caliber. Michigan law generally prohibits carrying a firearm in a motor vehicle while being operated, whether concealed or not concealed, unless that person has a concealed pistol license (CPL) or is a licensed firearm dealer lawfully transporting a firearm or an agent of such a licensee.

It is not a violation of the statute if the firearm is unloaded and one or more of the following applies:

  • the firearm is taken down
  • enclosed in a case
  • carried in the trunk of the vehicle
  • inaccessible from the interior of the vehicle

Penalties

Carrying a loaded firearm in or upon a motor vehicle is a misdemeanor punishable by up to 90 days in jail and/or a fine up to $100 plus costs.

Altering, Removing, or Obliterating Identification Marks on a Firearm

Under MCL 750.230 it is unlawful for a person to willfully alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other marks of identification of a pistol or other firearm. Any person who violates this statute is guilty of a felony punishable by up to two years in prison and/or a fine up to $1,000 plus costs. The law also states that anyone in possession of a firearm with altered, removed, or obliterated marks is presumed to be the person who altered, removed, or obliterated them. However, this particular provision was ruled unconstitutional in 1978 as the burden of proof lies solely with the prosecution.

Michigan Firearm Defense Attorney

Being charged with a firearm or weapons violation can have serious consequences including jail, prison, loss of gun rights, mandatory forfeiture of the firearm, not to mention red flags for future employers. Firearm charges are treated very seriously by prosecutors and judges and many will not offer reductions or plea agreements. You don’t have to let a gun charge ruin your future. If you have been charged with a firearms crime, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan firearm defense lawyer!

Defending firearm charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Kent, Barry, Branch, Hillsdale, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, Howell, Livingston, St. Johns, Ithaca, Ann Arbor, Grand Rapids, Jackson, Hillsdale, Hastings, Coldwater.

 

Receiving & Concealing Stolen Property

R&C Stolen Property

Lansing Michigan criminal defense attorney

Receiving and concealing stolen property is when someone buys, receives, possesses, conceals, or aids in the concealment of property that is embezzled, stolen, or converted. Receiving and concealing stolen property can either be a misdemeanor or felony depending on the value of the stolen property and if the person has any prior offenses for the same charge.

Receiving and Concealing Stolen Property Penalties

If any of the following apply, that person is guilty of a felony punishable by up to 10 years in prison and a fine up to $15,000 or three times the value of the property, whichever is greater:

  • The value of the property is $20,000 or more
  • The value of the property is $1,000-20,000 and the person has two or more prior convictions of receiving and concealing stolen property

If any of the following apply, that person is guilty of a felony punishable by up to five years in prison and a fine up to $10,000 or three times the value of the property, whichever is greater:

  • The value of the property is $1,000-20,000
  • The value of the property is $200-1,000 and the person has one or more prior convictions for receiving and concealing stolen property

If any of the following apply, that person is guilty of a misdemeanor punishable by up to one year in jail and a fine up to $2,000 or three times the value of the property, whichever is greater:

  • The value of the property is $200-1,000
  • The value of the property is less than $200 and the person has one or more prior convictions for receiving and concealing stolen property or an equivalent offense under a local ordinance.

If the value of the property is less than $200 and the person has no prior receiving and concealing stolen property convictions, that person is guilty of a misdemeanor punishable by up to 93 days in jail and a fine up to $500 or three times the value of the property, whichever is greater.

Receiving and Concealing a Stolen Motor Vehicle

The charge is the same only with the added element that the stolen property is a motor vehicle. This is a felony punishable by up to five years in prison and a fine up to $10,000 or three times the value of the property, whichever is greater.

Time May be Aggregated to Determine the Value of the Property

The value of the property may be aggregated to determine the total value if part of a scheme or course of conduct within any 12-month period.

Defenses

The key element in this charge is what I call the “knowing” element. Any person charged with this offense must have known or had reason to know that the property was stolen. This is not a strict liability crime. In other words, it is not enough for the prosecutor to prove that you were in possession of stolen property. They have to prove beyond a reasonable doubt that you knew it was stolen or you should have known it was stolen. This can be proven by circumstantial evidence, ex. serial numbers scratched off, someone with a trench coat in an alley offering to sell you a $100 gold Rolex, etc. Likewise, it is not a defense to the charge if the property was not actually stolen. If the property was represented to you as being stolen at the time you possessed or concealed it, you are guilty even if it was later determined that the property wasn’t stolen.

Lansing Michigan Criminal Defense Attorney

Receiving and concealing stolen property can leave an indelible mark on your record as any crime of theft or dishonesty can. If you have been charged with receiving and concealing stolen property you need an experienced criminal defense attorney to fight for you. Call Austin Legal Services, PLC today at (517) 614-1983 for a free consultation today!

Defending charges of receiving and concealing stolen property 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.

Should I Talk to the Police?

Should I Talk to the Police

Lansing Michigan Criminal Defense Lawyer

The police come knocking on your door or perhaps a detective calls and asks you to come down to the station. He just wants to talk. Ask you some questions. Should you go? The answer is “No!” At least, not without consulting with a lawyer first. Here are some of the reasons why you should never talk to the police without first consulting with an attorney.

The police might misunderstand you

Talking to the police is somewhat unnerving for most people. Just because the police use the word “talk” rather than “interrogate” doesn’t make it any less intimidating. The police are trained in the art of interrogation and know how to get information out of people. Most people don’t express themselves with exact precision. If you say something that the officer misunderstands or comes out with a different meaning than what you intended, it will be used against you.

The police may not accurately remember everything you say

Even if the officer takes notes during the interrogation, er… talk, it is quite possible, if not highly probable, that he won’t remember everything your say verbatim. Missing statements leads to lack of context which leads to misunderstandings. Or worse, the police may inaccurately recall what you said. The officer may also make incriminating inferences about your gestures, body language, and attitude that may be inaccurate.

You may lie to the police

Under the pressure and stress of a police interrogation, innocent people have been known to lie, even if it’s inadvertently. It happens quite frequently. Innocent people, in an attempt to vehemently assert their innocence, may deny some seemingly innocent fact to appear as innocent as possible. The police will pounce on any lie you tell, no matter how trivial. It can destroy your credibility at trial and make you look guilty.

Even if you’re innocent and tell the truth, you could still reveal information that could be used against you

For example, let’s say you are being questioned about a murder you are truly innocent of. In the course of denying the killing, you could admit to having a strong dislike for the victim and being in the area of the killing around the time of the murder. Now the police and prosecutor are armed with motive and can place you at the scene of the crime. Things like this easily snowball and you can find yourself being charged with a crime you didn’t commit.

You might confess to a crime you didn’t commit

Police are very skilled at the art of interrogation. Not only do they know how to illicit incriminating information through deceit, threats, and false promises, but they can also use physical techniques such as barraging you with questions for hours on end, depriving you of sleep and bathroom breaks. This has led to many false confessions, especially to those who may not have the mental and physical wherewithal to withstand a hostile interrogation. Next to false identification, false confessions are probably the second biggest reason why innocent people get convicted.

It’s difficult to tell a story the same way twice

Even for a completely innocent and honest person, it is quite difficult to tell a story the exact same way twice. The slightest slip or discrepancy on even the most trivial matter gives fodder for a great cross-examiner to expounded upon at trial to show that you are a liar and inconsistent in your story. This can be very damaging infront of a jury, even if it is completely innocent.

Even if you are guilty and want to confess, you shouldn’t do it to the police

At least not right away. There will be time for confessing and admitting responsibility later if that is what you want to do. More than 90% of cases end up pleading out. It is better to retain a lawyer who can exchange a benefit for your guilty plea through plea negotiations with the prosecutor. You may get a reduction in the charge(s) or a sentencing agreement. If you confess to the police, you get nothing in return. In fact, your chances of getting a good plea deal or any kind of deal at all may be gone because with your confession the prosecution’s case is air tight, or at least a lot stronger than it was.

Nothing good can come from talking to the police

Or at the least, it’s unlikely. Think of it this way, when the police ask to talk to you it’s generally one of two scenarios. First scenario: they believe you committed a crime and they have the goods on you. They don’t need your confession, but it will be icing on the cake. By confessing, incriminating yourself, or being contradictory, all you’ve done is made a strong case for the police even stronger. Second scenario: They believe you committed a crime and they don’t have the goods on you or they have very little on you. It’s a fishing expedition. By talking to the police, all you can do is provide them with ammunition to be used against you as mentioned above in the many reasons given why you shouldn’t talk to the police. All you’ll be doing is helping the police build a case against you and dig a deeper hole for yourself. Even if you are innocent, it is unlikely you are going to change their mind by talking to them.

You Have the Right to Remain Silent

Under the Fifth Amendment you have the right to remain silent. Use it! No one ever has to talk to the police. Ever. Even when you get pulled over all you are required by law to do is provide your driver’s license, proof of insurance, vehicle registration, and step out of the car if they ask you to. No talking is required. If the police come knocking on your door, you still don’t have to talk to the police. If the police ever ask you to come to the station and talk, always consult with a lawyer first. If not, it may be too late for a lawyer to undo the damage you’ve done by voluntarily speaking to the police. Remember, Miranda warnings are not required if you voluntarily speak to the police because you are not being detained by the police.

Lansing Michigan Criminal Defense Attorney

If the police have asked you to talk or take a polygraph (lie detector test) call Austin Legal Services, PLC at (517) 614-1983 for a free consultation today!

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

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.