Michigan Criminal Defense Lawyer Blog

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.

Understanding a Probation Violation Case

Published on: August 3, 2018 | by Patrick Barone

If you have been sentenced in Michigan for a violation of any misdemeanor or felony law, then the judge likely placed you on a term of probation. Technically speaking, you may be placed on probation if the court determines that you are unlikely to engage in any criminal conduct again, and that the public good does not require you to go to jail. For these reasons, probation is considered a privilege and not a right.

During the probationary period you will be ordered to comply with various terms and conditions of probation. A failure to comply with these terms and conditions may result in your being served with a “show cause.” You will usually receive this document in the mail. The purpose of this document is to notify you that you are being charged with an alleged violation of probation. This document also directs you to appear in court and “show cause” as to why you should not be held in contempt of court for violating your probation.

The first step in a violation of probation case is the arraignment. At this arraignment you will learn of the specific allegations against you and you will be asked to either plead guilty or not guilty to the violation. If you do not plead guilty then the matter will be set for a hearing. This hearing is usually set for a different date. At this show cause hearing the prosecutor will be required to call witnesses to establish that you failed to comply with at least one term of probation.

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.

Can I Legally Use Marijuana in Canada then Drive Home to Michigan?

Published on: June 27, 2018 | by Patrick Barone

No. Using Marijuana lawfully in Canada puts you at risk of an intoxicated driving charge in Michigan. This is true even though Canada recently passed new federal laws effectively making it legal to possess and use marijuana. Nevertheless, this new Canadian law may have an impact on how intoxicated driving laws are enforced here in Michigan. To understand why it’s helpful to briefly summarize Michigan’s drugged driving laws.

Until marijuana is also legalized for recreational use, Michigan’s intoxicated driving laws distinguish between the lawful and the unlawful use of marijuana. For people who can lawfully use medical marijuana, the police and prosecutor must show that the marijuana lawfully consumed substantially lessened the ability to operate the motor vehicle. In these circumstances, the police and prosecutor will rely on the driving observed and the roadside behavior of the motorist, including the performance on any field sobriety tasks, administered. Sometimes a blood test result showing a high level of THC in the blood will also be used to bolster their evidence of intoxication. If the jury believes that all of this evidence shows that the driver was intoxicated, then a conviction for OWI or Operating While Intoxicated will follow.

This level and type of proof are much different for the unlawful use of marijuana where the prosecutor need only show that at the time of driving the accused had any amount of THC in their blood. This is a zero-tolerance crime, meaning that the prosecutor is relieved of any burden to show intoxication. Simply having the THC in the bloodstream at the time of operation is sufficient.

How Much Will a DUI Lawyer Cost?

Published on: June 26, 2018 | by Patrick Barone

There is at least a ten-fold difference in the amounts Michigan lawyers charge to handle a first offense drunk driving case. Fees usually start at around $1,500.00 for a newer less experienced lawyer. From there, fees increase to as much as $15,000 – $25,000.00, including trial, for a top DUI lawyer. Where death or serious injury is involved, fees can be even higher.

With such a wide range of fees you may wonder if it is worth spending more to hire a great lawyer? For some people the answer is clearly yes while for others the answer is more elusive. Either way, it’s a personal decision that depends on many factors. Before making the investment in a top DUI lawyer, you may wish to consider the following questions:

Is the Lawyer Available to Answer my Questions? If you’re spending a lot of money for a lawyer then you should expect plenty of communication. Facing a criminal charge can make you feel like you are standing on the edge of an abyss staring into the great chasm of the great unknown. Your attorney will be your guide helping to bring order into the chaos you are facing. Consequently, when needed, you should have an easy ability to contact your lawyer without delay or hassle. No lawyer is going to be forever available, and consideration should be given for time spent in court and handling other client’s cases. Nevertheless, you should expect to be in contact within a reasonable amount of time under most circumstances. A good way to determine if the lawyer you’re considering will be good with communication after you’ve paid them is to start paying attention from the first time you contact the Firm. You will begin to get a feel of how important communication is to the lawyers and staff involved. Consider such things as whether a person answers the phone, or it goes to voicemail; does your attorney provide a cell phone number to call or text; how much time does it takes for someone to get back to you for an initial consultation; how much time does the attorney give you in the initial consultation, before you’ve even paid them. If communication seems labored or difficult, then this is a warning sign that will lead to an increase in stress as your case moves through the system.

Can I Refuse Police Officer DUI/OWI Tests?

Published on: June 8, 2018 | by Patrick Barone

Yes, you can lawfully refuse police DUI/OWI tests without penalty. However, there are exceptions, and in some situations, it may not be in your best interest to refuse these tests. Therefore, before you make this decision, you should discuss your options directly with a lawyer.

Generally speaking, if you are stopped by the police for drunk driving in Michigan, and the police confirm that you’ve been drinking, then the police will ask for your driver license, registration, and proof of insurance. After the officer runs your information through their computer and confirms there are no warrants our against you, then they will return to your car and ask you to step outside for the administration of several field sobriety tests. These tests usually include the standardized field sobriety tests, such as the horizontal gaze nystagmus, walk and turn and the one leg stand. Other tests might include the alphabet and counting backward. If the police ask you to take these tests, and you refuse, then no penalty applies.

After you have either submitted to the field sobriety tests or refused them, the police with next ask you to submit to a preliminary or roadside breath test (PBT). This test can also be refused, however, there is a penalty associated with a refusal of a PBT. Such refusal is a civil infraction, which means it is not a crime. The penalty is a fine only. There are no points assessed and there is no driver license sanction.

Michigan Criminal Defense Law Blog