Michigan Criminal Defense Lawyer Blog

Impact of a Michigan Drunk Driving Charge on Buying or Leasing a New Vehicle

Published on: November 22, 2016 | by Patrick Barone

If you have been arrested for a first offense drunk driving in Michigan, then you are not prohibited in any way from buying, selling or leasing a car. However, if you have been arrested for a second offense drunk driving, then things get a bit trickier.

In 1999, the Michigan drunk driving set forth at Michigan Complied Laws 257.625 et. seq., changed substantially. Part of these changes included license plate confiscation for people arrested for a second offense within seven years, or a third offense within a lifetime.[i] The police replace the metal license plate with a temporary paper plate that is valid, under statute, until the charges against the person are dismissed, the person pleads guilty or nolo contendere to those charges, or the person is found guilty of or is acquitted of those charges.[ii]

These procedures bring up a whole host of potential issues including what happens if you want to sell your car, or turn in your lease, and what happens if you want to buy a new car?

The Role of Search and Seizure in The Prosecution of DUI Cases

Published on: October 19, 2016 | by Patrick Barone

What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4^th amendment to the Constitution which provides as follows:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Michigan Court Finds Search Producing Marijuana is Unlawful

Published on: October 13, 2016 | by Patrick Barone

If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed. That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived. The police did this because consent is an exception to the Fourth Amendment search warrant requirement. In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet. This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given. Her consent was for the limited purpose of uncovering drugs. Thus, the wallet, keys and phone were not lawfully seized by the police.

Barone Authors Chapter in New Book Entitled “Legality of Search and Seizure in DUI Cases”

Published on: October 3, 2016 | by Patrick Barone

The Barone Defense Firm is pleased to announce that Patrick Barone has authored a chapter in the soon to be published 2016-2017 edition of “Legality of Search and Seizure in DUI Cases.” The title of Mr. Barone’s chapter is “Developing Essential Trial Skills for Defending DUI Cases.’ This new book from Aspatore’s “Inside the Minds” series will be available for purchase within the next few weeks.

Aspatore books is a division of Thomson Reuters publishing, one of the Nation’s largest publishers of law books. According to the publisher, the “Inside the Minds” series brings together leading executives and lawyers from around the world. Relative to law, the Inside the Minds series has published chapters written by the Chairs and/or Managing Partners from over 75% of the Nation’s top 200 law firms.

Mr. Barone’ Chapter includes the following sections:

Habitual Time Limits No Longer Apply to Repeat Felony Offenders

Published on: September 30, 2016 | by Patrick Barone

If you are charged with a felony in Michigan, and have another felony conviction anywhere in the country, then the state will file a habitual notice to seek an enhanced sentence. In other words, if you have a prior felony conviction then the state will attempt to have that used against you at sentencing.

Basically, the way it works is this; felony cases in Michigan start at the district court. After the preliminary hearing is either held or waived, the case is sent to or “bound over” to the circuit court. The first thing that happens at the circuit court is the arraignment. If you have another felony conviction, then at the circuit court arraignment your attorney will be provided with a habitual notice. The purpose of the notice is to let you know that the maximum sentence on your charge will be raised depending on the number of your prior felony convictions. You can be a habitual second or third and so forth, all the way up to fourth. No matter how many priors you have, the habitual can only go up to fourth.

Each time your habitual goes up, the underlying maximum sentence goes up with it. So, for a second habitual offense the maximum sentence is raised to one and half times the underlying maximum. Here’s how it works; let’s say you are charged with a five-year felony, like a drunk driving third offense. If you have a prior felony, then the maximum possible sentence is not five years but seven and a half years.

Prosecutor Challenges One-Year Jail Sentence for Drunk Driving Causing Death Case

Published on: September 29, 2016 | by Patrick Barone

In Michigan, a charge of drunk driving causing death is punishable by up to 15 years in prison. This possible sentence is set forth in Michigan Complied Laws 257.625(4)(a). In determining exactly what sentence to impose for an individual case a judge will be looking at many factors, including the Michigan Sentencing Guidelines.

A recent case dealing with this issue is People v. Taylor. In this particular case the defendant Taylor was found guilty of drunk driving causing death. The facts were that Taylor admitted drinking, then while driving a car killed a person on a bicycle. He failed field sobriety tests and was over the legal limit.

The sentencing guideline range was 29 – 57 months. Taylor’s defense attorney filed a sentencing memorandum where he requested a downward departure from these guidelines. He argued that there were substantial and compelling reasons to do so, including his lack of criminal history, education, employment history, remorse and many other factors. The prosecutor, of course, argued that none of this mattered.

Michigan Court Rules Preliminary Breath Test Results Admissible For Crimes Other Than DUIs

Published on: September 27, 2016 | by Patrick Barone

Even before you are arrested, the police in Michigan can often conduct a search of your breath using a portable or preliminary breath test device. The purpose of these tests is to determine how much alcohol is in your body. However, these portable breath testers have significant limitations relative to the reliability of the results reported. This is because of the way these portable breath testers measure alcohol. Because these limitations are well recognized in the scientific community, the law usually precludes them from being entered into evidence.

For example, in drunk driving cases, results from breath tests taken at the roadside are generally inadmissible. There are exceptions making preliminary breath test results admissible into evidence, and these are set for in Michigan Compiled Laws sec. 257.625a(2)(b).

However, these exceptions may not apply to other types of criminal activity in Michigan. For example, preliminary breath tests would be admissible on the charge of Possession of a Firearm Under the Influence, a crime set forth in Michigan Compiled Laws sec. 750.237.

Delay in Prosecution Leads to Dismissal of Wayne County DUI

Published on: September 19, 2016 | by Patrick Barone

Prosecutors are loath to dismiss or reduce drunk driving cases in Michigan. This is because so many people watch DUI cases so closely, everyone from MADD to the Michigan State Police watch and track what happens to each and every person arrested for intoxicated driving in Michigan. If a prosecutor gives a non-alcohol reduction or even dismisses a case, they usually will have a pretty darn good reason for doing it.

That’s where good lawyering comes into play. A case we handled recently at the Barone Defense Firm had a significant delay in prosecution, and this eventually lead to us being able to make a deal whereby the accused drunk driver plead guilty to a careless driving as well as a disorderly person, which was taken under advisement and will be removed from this client’s record after probation. The original charge of OWI was dismissed.

The facts of this case were not good. The accused was involved in a two car accident. The dispatch indicated that she was trying to leave the area. When police arrived they noted (in the written report) a “strong odor of intoxicatingly liquor emanating from her person.”

Facebook Posting Admissible as Evidence in Michigan Criminal Case

Published on: September 16, 2016 | by Patrick Barone

According to the Michigan Court of Appeals, Facebook postings are admissible as evidence against a person accused of a crime in Michigan. In a recent case involving assault with intent to commit murder, felony firearm and other charges, the prosecutor found and presented to the jury evidence obtained from the defendant’s Facebook page. The defendant objected, and the Court of Appeals opinion says this:

Defendant contends that the trial court abused its discretion when it admitted a Facebook posting into evidence without sufficient foundation. At issue is a page purportedly from defendant’s Facebook page on which is a picture of McKinley, the initials “RIP,” and a post reading, “Shuldd I let em kill me or turn myself ndd. I’m facing life nd da gtt dam pin…rest -6- in peace Ne-Ne, catch me nd traffic.”

The defendant also objected to admission of gang-related photographs also obtained from Facebook.

Drunk Driving Operation Can be Proven by Driver’s Admission to Police

Published on: September 15, 2016 | by Patrick Barone

The Michigan Court of Appeals has recently held that a driver’s admission to drinking too much and trying to drive from the bar were admissible against her to establish the element of operation.

As prosecutors often say in their opening/closing arguments, a crime is made up of parts called elements. In order to prove a case, a prosecutor must be able to prove each element of the crime beyond a reasonable doubt. In a drunk driving case, one of those necessary elements is operation. Usually, an element can’t be proved just by the defendant’s admission. This is called the “corpus delicti rule.”

According to David Moritz, an assistant professor at Wayne State University Law School: the common law corpus delicti rule prohibits the introduction of an extrajudicial confession in a criminal case unless the prosecution introduces independent evidence of the “corpus delicti.” That is, the prosecution must introduce some evidence independent of the confession to establish that the crime described in the confession actually occurred.

Michigan Criminal Defense Law Blog