Criminal Law & DUI
Frequently Asked Questions
This means that the police department is still gathering information on your case. Once the investigation is completed, the information will be turned over to the prosecutor who will determine whether or not to charge you with a crime. The police department may have an influence over the charges, but the final decision is made by the prosecutor.
A pretrial is exactly what it sounds like; it’s the court appearance before a trial. You may have 2, 3 or 8 pretrials, and may or may not have a trial at all. From my experience, only a small handful of cases go to trial.
This decision will be made by the prosecutor who will be provided the case information by the police department. If the facts fit a felony crime, then a prosecutor will usually charge you with the highest possible offense. Prosecutors do this to create leverage in negotiation, and may ultimately agree to settle the case for a misdemeanor.
This is a very common occurrence in Michigan. An arrest conducted by the police department does not automatically create a criminal charge. The case must be reviewed by the prosecutor before someone is charged. For many misdemeanors, and some felonies there will be a delay between the arrest and the charge. This is VERY common for drunk driving crimes, and drug offenses where the evidence must be tested at the lab to make sure the confiscated evidence is actually an illegal drug.
You have a constitution right to remain silent, and this silence cannot be used against you. The police may act like your friend, but they have a job to do, and that job is to gather incriminating evidence, which will assist the prosecutor in charging you with a crime. Even if you have nothing to hide, you may not realize that your statement could incriminate you. Ask to speak to an attorney before uttering one word to the police department.
This will be your first court appearance where you appear before a magistrate or judge. You do not have the right to an attorney at this point in your case; you must hire an attorney to be represented at your arraignment. The magistrate or judge will read the charges and you will enter a plea of not-guilty, guilty or stand mute. The magistrate or judge will also set a bond, along with various bond conditions. I would advise anyone charged with a crime to hire an attorney for an arraignment.
A judge can set a personal recognizance bond, which means you simply promise to return to court, but don’t post any money. A judge may also set a cash or surety bond, which means you will need to post this amount to be released during the pendency of your case. If the judge sets a 10 percent provision, it means you only need to actually post 10 percent of the amount set, and the other 90 percent will be owed to the court if you do not show-up. It is always best to bring someone to post bond for you, because some courts will not allow a defendant to post their own bond.
If you’ve been charged with a crime in Michigan, the police can come arrest you based upon an an active arrest warrant. For felony offenses in Michigan, the police will most likely come arrest you, unless your attorney can arrange to have a walk-in arraignment to avoid an embarrassing arrest. If you are charged with a misdemeanor, you will receive a notice in the mail to appear for court, and will most likely not be arrested prior to this court date.
This depends upon the court, the individual judge and the stage of your case. Most judges are flexible with granting at least one court adjournment, but this will be more difficult if you’re trying to move your case without the assistance of an attorney. Judges have timing requirements to resolve cases, and are not willing to risk their own reputation to fit your schedule.
If you don’t appear for court, a bench warrant will be issued for your arrest, and you could forfeit any bond posted. It is always best to try to make arrangements to move your court date rather than not showing up. Not appearing for court could also jeopardize any plea agreements or sentencing agreements, which were negotiated on your behalf.
Your criminal history and background could play a major role in the outcome of your case. That being said, the prosecutor does not care about you, but it’s not because the prosecutor is a bad person. Prosecutor’s deal with 1000’s of criminal defendants each year, and don’t have the time or patience to decide who deserves special treatment. It’s up to your attorney to present your history and background in the most favorable way.
There’s a major misconception that the victim makes the decision to prosecute. This is not true; a victim is merely a witness who provides factual information to the police department or prosecutor. Based upon this information, an arrest or investigation will occur, and the prosecutor will charge someone on behalf of the State of Michigan. The defendant has committed a crime against the state, in violation of a law rather than an individual person.
No, the prosecutor will prosecute the case on behalf of the People of the State of Michigan. The victim is not a party to the case; the victim is considered a fact witness who may provide testimony or receive restitution. The prosecutor may be part of the Attorney General’s Office, a county prosecutor or a city/township prosecutor.
It depends upon what crime you’re charged with, and where your case is pending. Each attorney has their own method and reasons for charging a certain fee. You should spend what you can afford, but also invest in the long-term success of your family, career and happiness.
In short, no you should not use the public defender. This is not because the public defender is not a qualified attorney, but a public defender cannot give you the time and attention you need during the most difficult time in your life. By hiring a private attorney, you are not only paying for a good attorney, you’re paying for communication, updates and being informed. A public defender cannot provide the bedside compassion and patience for your questions and concerns. If you don’t have the money, borrow money from a family member or friend. Being charged with a crime is not the time to be frugal and hope everything works out.
Judges will know very little about you during your case. The judge is not in a position to distinguish between the good people and the bad people. The judge will get a first impression based on your appearance and your speech, but it’s up to your attorney to add additional detail. At sentencing, the judge is provided with a background report by probation, which will attempt to humanize you in a good or bad way.
Absolutely! Your attorney is obligated to keep all conversations and information confidential. If you don’t tell your attorney the truth then your attorney is defending you with one hand behind his back. It’s common for a client to leave out important details, and the attorney is put in a bad position or surprised when the information is made available. It may be too late to recover from this lack of information.
Most courthouses do not allow any electronic devices including cell phones. Some court houses have lockers to put phones, but other courthouses do not provide this accommodations. It is best to leave your phone in the car or at home. If you need to make a phone call while at the courthouse, you will have access to a public phone.
If charged with a felony, you have the right to a preliminary examination before reaching the circuit court. There are three different things that can happen. The examination will be held where the prosecuting attorney must show probable cause that a crime was committed, and that you committed the crime. The examination could be waived, meaning that the case will go to the circuit court without an examination. The final result is the case is resolved with a plea as charged, or to reduced charges. The preliminary examination is the gatekeeper to felony charges.
Yes, you can be tested by order of the judge or by probation. It’s quite common for a judge to ask whether or not you will pass a drug test; depending upon your answer, the judge may test you on the spot. It is always best to be honest, because lying to a judge is never a good thing. Probation can and will subject you to random and scheduled drug testing. If you fail a drug test, you could be in violation of your bond conditions, your probation terms, or be charged with a new crime.
Usually not, but if your case is set for a hearing on a traffic ticket, a evidentary hearing or a trial, the officer will be present in court. On occasion a police officer will attend your arraignment and give his/her opinion on bond. Most people believe the police are the enemy, but they are doing their job, and can actually be a strong advocate for you.
Court cases can last anywhere from one to ten plus court dates. At a minimum you will need to attend court for an arraignment, which could be combined with a pre-trial conference. Unless you are sentenced the same day, most cases are take on a minimum two court appearances. You should not be in a rush to get the case over it; you should listen to your attorney, and proceed with the goal of obtaining the best result, not the quickest result.
If you are not released on bond, you will sit in jail during the pendency of your case. If you are to serve less than one year, then you go to a county jail, which is located within the particular county (i.e. Oakland County, Washtenaw County). If you are sentenced to more than a year, you go to prison, which is run by the Michigan Department of Corrections. You could serve time in a prison, which is outside the county which you committed the offense. In sum, it is far better to go to jail than to go to prison.
You have the right to remain silent and not say a single word. If the police officer requests your license, insurance and registration, you should hand that over as you are required to do so by law. You should otherwise not say a word; it’s hard to remain silent when an officer is asking you questions and demanding answers. The officer is doing this to gather evidence against you, not to make friendly conversation. The act of speaking leads to evidence (slurred speech), and even something you believe to be incident in nature, could build a case against you.
If asked to exit the vehicle, you should turn on your phone and begin recording both video and audio. Under the law, an officer can demand you exit the vehicle if they believe there is any threat to their safety. You should exit the vehicle and stand still and remain silent. If the officer demands you do field sobriety tests, speak or blow into a portable testing device, you should consider remaining silent and shake your head no.
Refusal for a roadside chemical test is a small fine and zero license points – this is NOT the Datamaster or blood draw chemical test, which is subject to license suspension under the implied consent law. There is no penalty for remaining silent and refusing field sobriety. The officer is likely to be very frustrated, to threaten to arrest you etc. but it’s your right to not build a case against yourself. If arrested, comply with the handcuffing and stay silent – don’t give in, because things are getting “worse”. At this point if you’ve kept quiet and recorded things, you stand a good chance to challenge the basis of the arrest. Officer needs probable cause you committed a crime – your driving and your physical appearance is all they have, which could mean no signs of intoxication .
If you’ve already plead guilty to a criminal offense, you cannot automatically take your plea back. In order to undo the plea and instead plea “Not Guilty” or “No Contest,” you would have to file a formal request with the court to Withdraw Guilty Plea. In order to be successful in this request, you need to prove that you truly didn’t understand the consequences of your plea; that you were improperly influenced or pressured to plea guilty; that you did not receive sufficient legal advice or representation prior to pleading guilty; that new evidence or facts not previously available for your consideration have now appeared and had that evidence or facts been present at the time of your plea, you would not have plead guilty.
Pro-Tip: You can’t take it back unless you have a very good reason to do so. You don’t get to take back the guilty plea because you don’t like your probation term or didn’t realize it could come up on a job application. It’s not small task to withdraw a guilty plea, so make sure you contact our office to learn more about how our lawyers have successfully withdrawn guilty pleas for our clients.
If your wheels do not completely stop moving when your car comes to rest at a stop sign, it is considered a “rolling stop” and you could be cited with a civil infraction and up to 3 points on your master driving record.
In Michigan, the crime of shoplifting is known as Retail Fraud, and if you get caught stealing $1.00-$200 in merchandise from a store, you could go to jail for up to 93 days, or be sentenced to probation for up to 24 months. It is extremely important that you come to court prepared and anticipate the judge’s response before it changes your life. That’s where your lawyer comes in.
If a judge has ordered an ignition-interlock breathalyzer device installed in your car in response to a recent alcohol-related offense, then you may still be allowed to drive (if Secretary of State doesn’t object for their own reasons), but you may only drive the vehicle(s) that have an ignition-interlock breathalyzer installed. Therefore, any car that does NOT have your interlock device installed in it CANNOT be driven while your own car remains parked elsewhere. In addition, you’re responsible for any violation arising out of someone else’s misuse of your device or missed / late / or positive tests while the vehicle is in use.
Pro-Tip: If you get caught driving another person’s car instead of driving your own to avoid having the use your in-car breathalyzer, you’re facing new charges and violations on pending cases. At the judge’s discretion, you could face jail time – as well as additional licensing sanctions on your Michigan driving privileges. Call our office today to speak with one of our experienced’ Ignition-Interlock Violation’ attorneys.
If your employee is an integral part of your business and you want to help, then you should consider this action-item list:
1) Find out the nature of the charges against your employee. This can be difficult as you are a third party and information is going to be limited, so it is important that the employee is willing to make that disclosure, or else you wait for the information to be made public.
2) If possible find out what police department arrested your employee, where he’s being held, and the location and date of his arraignment.
3) Contact your lawyer and relay the above info. If you don’t know all the details, that’s okay, your lawyer may have alternative methods for getting that information.
4) Once the case is pending, if you still want to keep your employee, despite the pending charges, then you should also consult with an attorney to determine any restrictions or conditions that would subject you as the employer to criminal or civil liability for keeping that employee.
5) If it’s a non-issue, then you are in your right to support that employee. To help, you can allow your employee to keep their job; be flexible with court dates – because the judge is not; and provide support and encouragement. It’s a difficult time for both employee and employer, but if the goal is growth, then it’s business-as-usual.
Pro-Tip: Don’t jump to conclusions. Stay within your rights. And Call Kelly if you’re concerned about your employee’s arrest, or if you’re an employee worried about an employer finding out about your arrest. Our firm handles these types of cases on a regular basis and we can help.
If you’ve been charged with a misdemeanor violation, the court (more specifically, the judge) can require you to take a drug test that day. Some courts have the ability and resources to test you onsite at the courthouse, while others may refer you to a local alcohol and drug testing facility that completes the test(s) ordered by the judge. Even if your case doesn’t involve drugs or alcohol, for example a retail fraud charge, the judge can still order you to take a drug test. You may not like it; but that’s part of the trade-off when facing a criminal misdemeanor charge. Credibility is key in this scenario, so if you are ordered to test for any reason, make sure you are up front with the judge about whether or not your results could be positive. In many cases, if you tell the judge about a prior usage or drugs or alcohol before sent to test, the judge will not punish you but will instead scrutinize any subsequent tests to make sure the presence of drugs is going down as time goes on. Any spike in those results between tests will suggest to the judge that you used the drug against the judge’s order.
Pro-Tip: If you’re nervous about answering this tough question in court – “What if I test you today, will you be clean?” – then take the initiative and complete your own drug or alcohol test on a voluntary basis prior to your court date. Consult your attorney on the best way to go about this. And most importantly, if you’ve been arrested or charged with a drinking or drug offense, STOP USING DRUGS OR ALCOHOL!
Believe it or not, you could get arrested if your dog gets off his leash – even just once!
Northville Township recently amended its own “dog at large” ordinance to reduce the offense from a 90-day-arrestable misdemeanor to a civil infraction for a first offense. Other places you’re not so lucky. Have you checked your local dog rules? Under Michigan law, the owner of any dog found to be “running at large” can be arrested and charged with a State misdemeanor offense punishable by up to 90 days in the county jail! An uncertain standard easily suspect to abuse of discretion. These seemingly “minor infractions” can carry tough unexpected penalties including a criminal conviction on your public record.
Pro Tip: Renew your permits; know what’s in season; wear the right colors (hunter orange and COMING SOON hunter pink too!); use the right gear; and check your local ordinances. Got Questions? Take a Shot. Call our office to speak with one of our experienced Michigan Department of Natural Resources Lawyers.
Parents should always consult with an attorney to properly gauge the severity of the situation and how best to proceed. Not only does the student risk being charged in a juvenile or adult court, but as a collateral consequence, administrative sanctions from the school can include anything from a “warning” for violating the student Code of Conduct, up to an academic expulsion from the school district. This can negatively impact college prospects, financial aid, and access to student housing.
Pro Tip: If your son or daughter is being questioned by school officials, you should contact one of our firm’s experienced School Crime Lawyers.
Pro Tip: If court is in the morning or afternoon, don’t be late – ever! You only get one chance to make a first impression. Arrive early, come prepared, and show that you care about what’s happening.