Perjury Charges and Penalties

Perjury

Lansing Michigan Perjury Defense Attorney

Perjury is essentially intentionally lying under oath in a court proceeding. Michigan treats perjury very seriously in order to protect the integrity of the justice system and to protect innocent people from being convicted. Undoubtedly innocent people have been convicted and imprisoned based on lies and deceit so judges and prosecutors do not take these charges lightly. There are multiple perjury charges and other related charges that often go along with perjury charges. I will discuss the various perjury charges and penalties.

What is Perjury

Perjury is intentionally lying under oath in a court of law. The prosecutor has to prove four elements beyond a reasonable doubt:

  • Defendant was legally required to take an oath in a proceeding in a court of justice
  • Defendant took such an oath (solemn promise to tell the truth)
  • Defendant made a false statement while under oath
  • Defendant knew the statement was false.

Penalties for Perjury

If the perjury occurred in a capital offense (where the maximum sentence is life in prison) the defendant faces any number of years up to life in prison. If the perjury occurred in a non-capital offense, the defendant faces up to 15 years in prison.

Subornation of Perjury and Inciting or Procuring Perjury

Subornation of perjury is getting someone else to commit perjury or lie under oath. This is a felony punishable by up to 15 years in prison. Even if the defendant attempted to get someone to commit perjury and they didn’t, they are still guilty of a crime. That is known as Inciting or Procuring Perjury but Perjury Not Committed. That is a felony punishable by up to five years in prison.

Tampering with Evidence or Offering False Evidence

This can occur in one of several ways:

  • Withholding or refusing to produce testimony, information, document, or thing after a court has ordered it be produced
  • Preventing or attempting to prevent another person from reporting a crime through unlawful use of physical force
  • Retaliating or attempting to retaliate to prevent another person from reporting a crime through unlawful use of physical force

Retaliation is committing a crime against a person or attempting to commit a crime against a person, threatening to kill or injury, or threatening to cause property damage.

Tampering with evidence is a felony punishable by up to four years in prison. If it occurs in a case where the maximum penalty is 10 years or more, then it is punishable by up to 10 years in prison.

Perjury and tampering with evidence can often lead to other serious charges being filed such as witness intimidation which can be either a misdemeanor or felony.

Is Lying to a Police Officer Perjury

No! It is not perjury because the statement is not made under oath. However, that doesn’t mean you can’t be charged with other crimes. In some instances you can be charged with lying to a police officer depending on what you lied about or filing a false police report.

Defenses to Perjury

  • Reasonable doubt—the prosecutor has failed to prove their case on one or more of the elements
  • The statement was truthful or the defendant believed the statement was truthful
  • Uncredible witnesses—if the witnesses lack credibility, has a bias, or are impeached this can lead to reasonable doubt
  • Defendant was trying to compel the truth

If you are charged with perjury you are facing a felony conviction of dishonesty which can haunt you for the rest of your life as you apply for jobs, housing, scholarships, college admission, and professional licensing. That is why you need an experienced criminal defense attorney representing you. Even if you have no defenses, a skilled criminal attorney may be able to keep the matter off your record with diversion, delayed sentence, or a deferral program such as the Holmes Youthful Trainee Act (HYTA).

Lansing Michigan Criminal Defense Attorney

If you are facing perjury charges or tampering with evidence, obstruction of justice, or subornation of perjury you need an experienced advocate on your side. Call Austin Legal Services, PLC today to speak to a Michigan perjury defense lawyer at (517) 614-1983!

Defending charges of perjury, subornation of perjury, obstruction of justice, and tampering with evidence throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Shiawassee, Clinton, Kent, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Charlotte, Grand Rapids, Jackson, Hastings, Brighton, Howell

Can Husbands or Wives be Forced to be a Witness Against Their Spouse?

Husband and Wife Testify Against Each Other

Michigan Criminal Defense Attorney

Can spouses be compelled through subpoenas to act as a witness against the other? The answer is yes; at least, sometimes. There are some circumstances where a husband or wife can be compelled by the courts to act as a witness against their husband or wife, even if they don’t want to. Failure to honor a subpoena is contempt of court which can land you in jail. There is a difference between spouses acting as a witness against the other spouse as opposed to divulging privileged communication between husband and wife. This article will mainly discuss when a spouse can act as a witness against their spouse in a court proceeding.

When Can a Spouse Act as a Witness Against the Other Spouse?

The general rule is that a husband or wife cannot be forced to act as a witness, either for or against, the other spouse in criminal cases. However, there are exceptions to this rule. A husband or wife can be compelled to testify as a witness against the other spouse in the following types of court cases:

  • A suit for divorce, separate maintenance (legal separation), or annulment
  • Prosecution for bigamy
  • Prosecution for a crime committed against a child of either or both or a crime committed against an individual younger than 18 years old (e.g. child abuse)
  • Cases involving a personal wrong or injury done by one spouse to the other spouse (e.g. domestic violence, assault and battery)
  • Cases growing out of the refusal or neglect to furnish the spouse or children with suitable support (failure to pay child support)
  • Cases of desertion or abandonment.

Privileged Communication Between Husband and Wife

There are several types of communications that are considered privileged due to the nature of the relationship. That means public policy dictates that the protecting the private communication of those special relationships is greater than society’s need to have it disclosed. Some examples of privileged communication are doctor-patient, clergy-penitent, and lawyer-client. Generally, a spouse cannot be compelled to testify as to communications made between that spouse and the other spouse unless it falls into one of the exceptions previously mentioned. It makes no difference whether they are currently married or are formerly married. What matters is if the communication was made while they were married. If the nature of the communication does not fall into one of the previously listed exceptions, the spouse can only testify if they have the permission of the other spouse (whether current or former).

Lansing Michigan Criminal Defense Lawyer

A spouse cannot refuse to testify against their spouse simply because they are married. Likewise, a spouse who is on trial for domestic violence or child abuse cannot stop his or her spouse from being a witness against them by not giving consent. It doesn’t work that way. If it did, it would be virtually impossible to prosecute for domestic violence, child abuse, or sex crimes involving married couples. If you have been charged with a crime and your spouse is a witness, you need an experienced criminal defense attorney on your side. A lawyer with experience in defending domestic violence, criminal sexual conduct, and child abuse charges will know if your spouse can be disqualified as a witness or if certain testimony can be suppressed because of privileged marital communication.

Call Austin Legal Services, PLC to speak to a Michigan criminal defense lawyer today at (517) 614-1983!

Defending domestic violence, criminal sexual conduct (csc), and child abuse charges throughout Michigan in the counties of Ingham, Eaton, Gratiot, Clinton, Jackson, Shiawassee, Calhoun, Kent in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Corunna, Battle Creek, and Grand Rapids.

Tether and Electronic Monitoring Devices

Tether

Michigan Criminal Defense Attorney

As a condition of bail, bond, sentencing, or probation, the judge may order you to wear an electronic monitoring device, or tether. An electronic monitoring device allows pretrial services, probation, or parole the chance to closely supervise you by keeping track of where you are at or in some cases, determine if you are consuming alcohol. There are several types of electronic monitoring devices that are commonly used. Tethers are bracelets that are attached to the ankle while breathalyzers can be portable or attached to your car.

Global Positioning System (GPS) Tether

This monitors the defendant’s movement by satellite and reports his movements and whereabouts to the supervising agency. Exclusion Zones or Hot Zones (places where the defendant is not supposed to be) are programmed into a computer program that runs in conjunction with the GPS tether and alerts the supervising agency if the defendant goes someplace that he is not supposed to go such as the home or workplace of an alleged victim. The GPS tether could also be programmed so that the defendant is only allowed to be in or traveling to and from certain places such as work, home, or court. It could also be programmed to alert the supervising agency if defendant leaves beyond a certain radius.

Transdermal Alcohol Tether

This type of tether monitors (usually SCRAM tethers) the defendant’s skin to determine if any alcohol has been ingested into the body. While it is designed to monitor any alcohol from alcoholic drinks or alcohol-based products (mouthwashes, cough syrups, etc.) that the defendant may be ingesting, they are not designed to detect only ethyl alcohol (the type contained in alcoholic beverages). They will detect only forms of alcohol that can come from anything ranging from certain foods, hand lotions, body washes, or cleaning products. It also alerts the agency if the defendant has tried circumventing the tether in any way or tampering with it.

Standard Tether

This device records and reports when a defendant enters and exits certain locations, such as his residence. This ankle bracelet needs a landline phone in order to properly work.

Breathalyzers

Breathalyzers are either portable devices or installed to a fixed setting like a car or home. The court may require a defendant to submit to a preliminary breath test (PBT) at regular times (everyday by a certain time, each time defendant enters or leaves the residence), or when certain events occur (e.g. driving a car). These units are often equipped with cameras to verify that it is actually the defendant providing the breath sample. Breathalzyers are often ordered by the court for substance-related offenses such as DUIs, driver’s license restorations, any offense involving alcohol, or if the defendant has a history of alcohol abuse.

Ignition Interlock Devices

An ignition interlock device is a breathalyzer that is specifically designed for installation in cars to prevent defendants from operating the car until they prove they have not been drinking. They require a significant breath sample that requires the defendant to blow and hum at the same time. A breath sample of approximately 1.5 ml of breath is normally required before the car will start. The ignition interlock device also requires you to submit to “rolling tests” meaning you have to give a breath sample at spontaneous times while the car is in motion to determine you haven’t been drinking since you started the car. The slightest thing can cause them to malfunction. These are frequently required for driver’s license restorations, High BAC (Superdrunk) charges, subsequent OWI offenses (OWI 2nd, OWI 3rd) and felony DUIs (OWI 3rd, OWI Causing Injury or Death).

Lansing Michigan Criminal Defense Attorney

Tethers, breathalzyers, and ignition interlock devices as a bond or probation condition can be costly in terms of money (rental and maintenance costs) as well as convenience. It also creates another possibility for a violation if anything goes wrong. A violation could get your bond or probation revoked and land you back in jail for a long time. If you have been charged with a tether or ignition interlock violation or if you are required to have a tether as a bond condition, you need to have an experienced criminal defense attorney on your side to defend against the violation or convince the judge the requirement is too costly, burdensome, or unnecessary.

If you are facing misdemeanor or felony criminal charges call Austin Legal Services, PLC today at (517) 614-1983 for a free, no obligation consultation!

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

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.

Should I Take a Polygraph?

Polygraph

Lansing Michigan Criminal Defense Attorney

A polygraph examination, commonly referred to as a lie detector test, is often used by law enforcement for a variety of reasons. However, the results of a polygraph are not admissible in Michigan courts as evidence because it does not meet the scientific standards for reliability (most studies put polygraph accuracy at about 90%). However, it is extremely important to remember that even though the polygraph results are not admissible, any statements you make during a polygraph can be admitted as an admission.

How Does a Polygraph Work

A polygraph is supposed to detect when a person is lying by recording the suspects’ bodily reactions to questions. Polygraphs are based on the premise that a person’s body will respond in certain ways when they are lying. Four to six sensors are placed on the suspects’ body which measure: pulse, breathing rate, blood pressure, perspiration, and body movements. The readings are recorded by ink on a moving piece of paper by computer.

Pre-test Interview

Typically, a polygraph will begin with a pre-test interview to gain preliminary information to develop possible test questions and build rapport with the suspect. The suspect will be asked to sign a sheet containing Miranda rights indicating that submitting to the polygraph is knowing and voluntary.

Establishing a Baseline for the Polygraph

A baseline is established by the person conducting the polygraph to calibrate the equipment to the body chemistry of the suspect. During this portion the suspect will be asked to deliberately lie to the question being posed by the examiner (polygraphist) to see if he can detect a lie. When the real test begins about four or five questions relevant to the issue at hand are asked. Sometimes control questions will be mixed in with the other questions to measure any changes between the control questions and relevant questions so that a change in response can be read by the examiner. The polygraph examiner looks at changes in the readings to determine if the suspect is lying. The reading is subjective by the polygraphist which is one of the reasons why lie detector tests are not foolproof.

Post-Test Interview

The polygraph concludes with a post-test interview. If the examiner believes the suspect is lying he will often try to elicit a confession. It is very important to make no admissions during or after a polygraph. If a suspect is told they have failed the polygraph, make no more statements or volunteer any statements.

Never Take a Polygraph Without First Consulting with an Attorney

No one should ever take or agree to take a polygraph without first consulting with an experienced criminal defense lawyer. The police polygraphists are not there to help you or clear your name. They are trained to get confessions or trick you into confessing despite how friendly they may act. Some polygraph examiners will go beyond the scope of the relevant issues when administering the polygraph. No matter what they tell you, they are not on your side. I never have a client take a polygraph without first arranging a private polygraph to see how the client performs. There are many legitimate reasons why someone will not pass or do well on a polygraph. They are just not reliable enough.

Advantages and Disadvantages of Taking a Polygraph

The advantage of a client passing a private polygraph is that it can be used to persuade a prosecutor to drop charges, particularly if the evidence is weak or it is a “bare bones” case. If a client can pass a private polygraph I am usually confident they can pass one administered by the police. The disadvantage of failing is that if the prosecutor had any doubts at all, they will probably be fervently convinced and press forward with the case. Family and friends may no longer offer their emotional and financial support. However, the results of a private polygraph arranged by your criminal defense attorney should not be shared because it is strictly confidential. The disadvantage of a police polygraph is that any confessions made before, during, or after can be introduced as evidence at trial.

Polygraphs in Sex Crime Cases

If charged with certain sex crimes, you may be entitled to have a polygraph exam be administered. This is especially true in cases where the defendant maintains his innocence and the medical reports do not support the complaining witness’s story. Again, that decision should not be made without consulting with an experienced criminal defense attorney.

Michigan Criminal Defense Attorney

If you have been charged with a crime or are under investigation, do not make any statements to the police or agree to take a polygraph without first consulting with an experienced criminal defense attorney. Call Austin Legal Services, PLC at (517) 614-1983 for a free no obligation consultation today!

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

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.

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.

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.