Michigan Criminal Defense Lawyer Blog

Will Michigan Drug Conviction Cause a Driver’s License Suspension?

Published on: September 11, 2018 | by Patrick Barone

Convictions for many drug charges in Michigan will result in a suspension, restriction or even revocation of your driving privilege. This is true even if you were not driving at the time of the offense. The length, type, and severity of the driver license sanction will depend on the charge you are facing and on your prior record.

If you have no prior drug violations, then in most instances your driver license will be suspended for six months. You may be able to obtain restricted privileges, but no matter what, there will be no driving at all for at least the first 30 days. If you wish to obtain restricted privileges, then your lawyer will need to obtain a court order. It is the judge presiding over your case and not the secretary of state who makes this decision. But it is discretionary, so the judge is not obligated to give you restricted privileges just because you ask for them. Your lawyer will explain to you all the factors that will be considered by the judge in making this decision.

On the other hand, if you have one or more prior drug convictions and these convictions happened with the prior seven years, then not only will your driver license will be suspended for one full year, you will also not be able to obtain any restricted driving privileges.

Can I Open Carry on School Grounds with a CPL?

Published on: September 11, 2018 | by Patrick Barone

Yes, unless the school specifically has a policy against open carry, a person with a valid CPL may open carry on school grounds. However, the multitude of laws addressing this topic is so nuanced that a person wishing to open carry on school grounds should consider contacting the school and the local police agency prior to open carrying on school grounds.

The issue of open carry on school grounds has been extensively litigated finally resolved by at the end of July 2018 Michigan Supreme Court opinion by the name of Michigan Gun Owners, Inc v. Ann Arbor Public Schools. In this case, the plaintiffs, Michigan Gun Owners and Michigan Open Carry, Inc., set forth Michigan law supporting open carry on school grounds as follows:

MCL § 750.237a(4) generally prohibits possession of a firearm within a “weapon free school zone”.
MCL § 750.237a(5)(c) exempts “an individual who is licensed by this state or another state to carry a concealed weapon”.
MCL § 28.425o(1)(a) generally prohibits the carrying of a “concealed weapon” at a school or school property. However, this statute specifically provides an exception for a concealed pistol licensee while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the student from the school.
18 USC §922(q)(2)(A) restricts knowingly possessing a firearm in a school zone. An exception exists for an individual licensed to do so by the State in which the school zone is located. 18 USC §922(q)(2)(B)(ii).

It was the Michigan Gun Owner and Michigan Open Carry, Inc.’s position in this case that because of the interplay between the above sections of Michigan law, open carry is allowed, for CPL holders only, and that Michigan Public Schools were precluded from modifying this law in any way by the law of preemption. This second argument was based on MCL § 123.1102, which preempts local units of government from adopting firearm ordinances or regulations.

Am I Responsible for Drugs in a Car I am Driving?

Published on: August 24, 2018 | by Patrick Barone

Yes, it is possible for you to be arrested, charged and convicted of a drug charge for drugs found anywhere inside a car you are driving. Because of the concept of constructive possession, you can be charged even if the drugs don’t belong to you. Provided you have knowledge of the drugs, and the right to control them, you can be charged with possession of drugs that are not actually in your purse or pocket. If there are enough drugs, and other “indicia of intent to sell” you can also be charged with delivery of drugs, a much more serious crime. This concept of constructive possession can be applied to marijuana, unlawful prescription drugs, drugs like heroin, cocaine, meth. and many other drugs.

It’s always good to remember that an arrest is not a conviction, and just because the police can charge you with a crime does not mean the prosecutor can prove it happened. Once you’ve hired an experienced drug crime lawyer, he or she will be looking for various ways to defend and win your case. If you encountered the police while driving a car, and during the encounter, drugs are found, your lawyer will first want to determine if there is a search and seizure issue. If the police violated your fourth amendment rights during the encounter, then this can result in the suppression of any evidence found. Since a drug charge is dependent on evidence of drugs, suppression of the evidence will often lead to dismissal of the charges.

If your car was stopped by the police, then your lawyer will also want to examine the record to determine if the vehicle was lawfully stopped. This is a different kind of search and seizure issue, and just as with the drugs, if your fourth amendment rights were violated by the traffic stop, this can also lead to the dismissal of your case. This is based on the “fruit of the poisonous tree” doctrine, which essentially stands for the proposition that any evidence found after the unlawful stop is inadmissible as evidence.

What is Constructive Possession of Guns or Drugs?

Published on: August 10, 2018 | by Patrick Barone

Constructive possession is a legal fiction that allows you to be charged with a serious crime even when the guns or drugs are not found on you. Usually this will happen when you are the driver or passenger of a car where the guns or drugs are found, or when they are found in a home you occupy. To fully understand this legal concept, it is helpful to start with a definition of the term “constructive.”

According to the Oxford English Dictionary, the word “constructive” means: “not obvious or stated explicitly; derived by inference.” In the law the word constructive is used to cover many things that are implied, inferred or imputed to a person under a specific set of circumstances. So, lawyers use phrases like “constructive contract” to refer to a contract that can be implied by people’s behavior even though the terms of the contract were never written down on a signed document. Similar legal concepts include constructive notice, constructive assent, constructive trust, constructive conversion, and so on.

With constructive possession it is the possession that is implied or inferred. According to Black’s Law Dictionary, constructive possession occurs “where one does not have physical custody or possession but is in a position to exercise dominion or control over a thing.” Michigan courts recognize that the term “possession” includes both actual and constructive possession. Accordingly, a person has constructive possession if there is proximity to the article together with indicia of control.[i] Said differently, a person has constructive possession if the location of the drugs or the gun is known, and it is reasonably accessible to the person. Physical possession is not necessary if the person has constructive possession.[ii] Constructive possession can be established with circumstantial evidence. [iii]

Keeping MI Drug Possession Charges Off Your Permanent Record

Published on: August 9, 2018 | by Patrick Barone

Having drug charges on your criminal record can be a life-changing experience. Such charges can impact your job, your income, and your future. However, depending on the circumstances, your attorney may be able to help you keep your drug charges off your permanent criminal record. These methods can present you with great advantages and can help you to minimize the damage a drug conviction could cause.

The best way to avoid a criminal record is to find a lawyer who can win your case. Consequently, finding and hiring an experienced drug possession lawyer near me is a good start. Your lawyer will look at the facts of the case, including the results of a chemical test, as well as the police conduct, to determine what legal defenses, if any, apply to your case. These will be discussed with you so that you can make an informed decision about how to proceed. Your trial options should be discussed with your lawyer as well.

Once all your legal options and defenses have been pursued, the next step is to decide if you should plead guilty. If you do decide that this is your best option, then there are possibly two different ways to avoid a conviction even when you plead guilty. These are called “section 7411” and HYTA.

What Happens if Violate My Probation in Michigan?

Published on: August 3, 2018 | by Patrick Barone

What is Probation

What Is Probation?

In Michigan, probation is a legal status that allows a person convicted of a misdemeanor or felony to remain in the community under court supervision instead of serving time in jail or prison. Under MCL 771.1, a court may place a person on probation if it determines the person is not likely to engage in further criminal conduct and that the public welfare does not require incarceration. Probation is considered a privilege, not a right, and is granted at the discretion of the sentencing judge.

Am I Eligible for Sobriety Court?

Published on: August 2, 2018 | by Patrick Barone

Many courts throughout Michigan employ an alternative form of sentencing for drunk drivers that emphasize treatment over punishment. Collectively, this approach to sentencing is called sobriety court. Such courts utilize a 2011 Michigan statute codified in Michigan Compiled Laws § 257.304. This law established new procedures and sobriety court participation provides advantages not available with traditional sentencing. Eligibility to participate in a sobriety court program varies depending on the location of your arrest and the court where your case is presiding. Sobriety courts are only available to repeat offenders arrested after 2011. Some courts also impose residency requirements, meaning the offender must live within the jurisdiction of the court.

Sobriety courts are not available in all jurisdictions. The admission into sobriety court is at the discretion of the Judge presiding over the sobriety court. You will only be admitted into sobriety court if you are able to demonstrate a strong commitment to sobriety. If you are considering sobriety court it is best to discuss the specific requirements of your court with your lawyer.

In the sobriety court environment, the judge unofficially acts as a recovery group facilitator. In addition to the judge, who presides over the official sobriety court sessions, you will also be involved with someone from the prosecutor’s office, a defense advisor, one or more probation officers, including the probation supervisor, and a variety of treatment providers. All of this takes place in a non-adversarial context and is far less formal than typical court proceedings. Most of the courts that use this model require a minimum of 18 months of supervision. The intensity of the probation, including the amount of alcohol and drug testing, support meetings, etc., is greatest at the beginning of the probation period and is gradually reduced as you demonstrate your ability to stay in compliance with the terms of your probation and have demonstrated the ability to maintain your ongoing sobriety.

Misdemeanor and Felony Procedures in a Michigan DUI/OWI Case

Published on: August 1, 2018 | by Patrick Barone

After you’ve been arrested for DUI/OWI in Michigan the next step will be for the arresting officer(s) to prepare a narrative written police report, including any supplemental discovery materials. Depending on the nature of the office, this report and investigation will include a description of the basis for the initial police contact, usually a traffic stop, a description of the entire roadside investigation, including your performance on any field sobriety tasks, the results of any chemical tests, copies of any search warrants, one or more video recordings, and copies of any witness statements. If there was an accident, and injury or death occurred, then the police reports may include an accident reconstruction, medical records, and the coroner’s report relative to cause of death.

Once these reports and materials have been signed off on by the senior officer in charge, they will be forwarded to the prosecuting attorney. At this time the prosecutor will review your prior record, and the facts of the case, to determine what charges should be issued. If you were issued an appearance ticket, these final charges may or may not be the same. The prosecutor will then prepare an arrest warrant which will be issued by the court, and this, or the appearance ticket, will start the court-related steps.

The first court-related step will be the arraignment. The purpose of the arraignment is for you to appear before the court and learn of the charges you are facing. The court will also set your bond, including any conditions to your bond. Provided you can make bond, you will leave the courthouse with a new date to appear. At this point the steps will depend on if you are charged with a misdemeanor or felony.

Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

Published on: July 18, 2018 | by Patrick Barone

If you have been charged with a second offense drunk driving case in Michigan, then you are probably wondering about how severely you will be punished. The type of punishment will be based on both criminal enhancement and driver license enhancement. Before discussing these differences, the first thing to know is about the two is that the judge will decide your punishment whereas the Michigan Secretary of State will decide your driver license sanction.

With that in mind, let’s first look at criminal enhancement. The Michigan look-back period for second offense drunk driving is 7-years. This means that a new DUI arrest occurring within 7- years after a prior DUI will be considered a second offense drunk driving. The look-back period for criminal enhancement runs from date of conviction to date of arrest.

In this context enhanced means, the statute provides for the possibility of more jail time. For example, for a first offense DUI the maximum jail time is 93 days with no minimum period of incarceration. However, in the case of a second offense drunk driving, Michigan Compiled Laws § 257.625 provides as follows:

What is Michigan’s Under 21 Zero Tolerance Law?

Published on: July 17, 2018 | by Patrick Barone

You are a drunk driver if you are under 21 years of age in Michigan, drink any amount of alcohol and then drive a car. This is called the Michigan zero-tolerance drunk driving law. To fully understand this law, it is important to know how “any amount of alcohol” is defined. Michigan’s Compiled Laws 257.625(6)(a) and (b) provide as follows:

As used in this subsection, “any bodily alcohol content” (BAC) means either having an alcohol content of 0.02 grams or more but less than 0.08 grams or having the presence of any alcohol within a person’s body resulting from the consumption of alcoholic liquor.

If you are under 21 years of age, and have an alcohol content of .08 or more, then you will be charged with an “adult” drunk driving, which carries greater punishments and a more draconian driver license sanction.

Michigan Criminal Defense Law Blog

What Is Probation?