Articles Posted in Criminal Penalties

Michigan’s Super Drunk Driving law went into effect on October 31, 2010.  It created enhanced punitive and driver license sanctions for Michigan drunk drivers with a Bodily Alcohol Content (BAC) of .17 or above. It only applies to first offense drunk driving as penalties and driver license sanctions for second or subsequent offenses remain unchanged and more punitive than for super drunk driving. This is true even for repeat offenders with BACs at or above .17.

What are the Penalties for a High BAC Super Drunk Driving in Michigan?

Michigan drivers found or pleading guilty to a High BAC super drunk driving face an array of serious punishments and consequences, including potentially more time in jail and less time on the road.

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense.  The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020.  The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020.  Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent.  In this instance, yes does not mean yes.

If you have been charged with a violation under Chapter 110 of the United States code for possessing, receiving, distributing, or producing child pornography, then pursuant to 18 USC 18 U.S. Code § 2259, you are likely to be ordered to pay restitution to the victims of the crime. The term “victim” refers to the individual who is harmed because of the child pornography related crime.

As a general concept, the purpose of restitution in a criminal case is two-fold.  Firstly, restitution is intended to make a person “whole” meaning reimburse them directly for losses suffered because of the crime committed. Secondly, restitution has a punitive function, it is intended to punish the wrongdoer for the crime.

If the crime involved the trafficking of child pornography, which in this context means a violation of 18 USC 2251(d), 2252, 2252A(a)(1) through (5), 2252A(g), then the specific law cited above applies. Under this law, the court is required to determine the full amount of losses that were actually incurred or that could be “reasonably projected.” Then, after this calculation, the court is required to order restitution in an amount that reflects the defendant’s “relative role” in causing the victims loses.  The minimum amount that must be ordered $3,000.

A man charged with second degree Criminal Sexual Conduct (CSC) in Ann Arbor successfully avoided jail time and conviction on the charge as filed. The accused was originally arraigned on the CSC 2nd degree charge on July 29, 2020. The charge was a result of an investigation into a complaint from a 10-year-old girl who was under the care of the accused. The allegation was that the victim was touched in a sexual way by the accused while being cared for by the accused in the home of the accused.

What are the penalties for 2nd degree Criminal Sexual Conduct in Michigan?

The potential consequences for second degree Criminal Sexual Conduct in Michigan are severe. CSC 2 is a felony that cannot be expunged. If convicted, you could be sent to state prison for up to 15 years. A conviction also requires that the defendant registers as a sex offender under Michigan’s Sex Offender Registry Act (SORA). If the victim was less than 13 years old and the defendant was at least 17 years old, as in the case above, then the convicted defendant will be required to wear an electronic monitoring device for a lifetime. The convicted defendant must also pay for the cost of that monitoring device.

A question the criminal defense lawyers at the Barone Defense Firm are often asked by their client’s is whether it would be beneficial to begin in therapy. Although the question is typically offered in the context of “will it help my case” or “will it make me look better in front of the judge or prosecutor” this is only one aspect that underlies this question.

We have found that many persons involved in allegedly criminal behavior are doing so as an outgrowth or sublimation of an ongoing and improperly treated mental health issue. In the case of an allegation of intoxicated or drunk driving the individual may be suffering from an unmitigated substance use disorder. In such a case, the substance use disorder may be a further sublimation of a mood or personality disorder. On the other hand, a person accused of receiving, distributing, or producing child pornography may have themselves been abused as children or suffer from an addiction to pornography. These are just two examples of how the alleged criminal behavior is really a manifestation or symptom of something else.

Understanding the complexity of the issue, the criminal defense lawyers at the Barone Defense Firm often interview our clients with an ear toward thinking of what additional services might benefit them. If we believe that therapy will help them improve their lives, we will often make referrals to various mental health individuals or group centers. In doing so we are seeking primarily to help fulfill the Firm’s mission, which is to help our client’s win back their lives.

If you have been charged with and convicted of a felony in Michigan, then it will be important for you to know and understand the sentencing guidelines. From a historical perspective, sentencing guidelines were intended to accomplish several things, one of which was to remove the possibility of discriminatory sentences. Because there is a certain amount of objectivity to the calculation of sentencing guidelines, a wealthy white male should be sentenced in the same range as a poor black woman.

How Do Sentencing Guidelines Work?

Generally speaking, each offense category has assigned to it a variety of offense variables and prior record variables. Points are assigned for each of these variables, tallied, and then applied to the appropriate sentencing grid. The results of both will cause your sentence to “land” within a particular cell that will dictate the appropriate minimum sentence.

If you have been charged with a crime in Michigan, you will have to decide if you should plead guilty or go to trial. You should make this decision only with the assistance of your Michigan criminal lawyer, who can explain to you the advantages of the plea offer and contrast them with the advantages or disadvantages of trial. Once you’ve made your decision to plead guilty, your case will be set for a plea hearing. This is when the court will take your plea, and after which your case will be set for sentencing.

Prior to your court hearing you may be asked to review and sign a plea form. In federal court this is referred to as a Rule 11 agreement. Most, but not all, state courts also use written plea forms. When used, plea forms set forth the terms of the plea and usually include a recitation of any possible sentence. If yours is a state case, and there is a Cobbs agreement, then this sentencing agreement will also appear on the plea form. Your signed plea agreement will be provided to the court and the judge will confirm that your signature appears on this document.

As it relates to the plea hearing itself, there are two parts to any plea; the first is the advice of rights, and the second is the factual basis. With the advice of rights, the court’s primary interest is to confirm, through question and answer, that you understand all the constitutional rights you give up by pleading guilty. Most state district courts will use standard form 213, which you are often asked to sign at your arraignment. These constitutional rights include all your trial rights and include the following:

Contact Information