Michigan Criminal Defense Lawyer Blog

Michigan CPL Applications Likely to Reach One Million in 2018

Published on: May 4, 2018 | by Patrick Barone

The number of Michigan citizens with a Concealed Pistol License (CPL) continues to increase each year with 2018 on track to become a recording breaking year. As of April 2018, there are a total of 993,026 CPL holders in Michigan according to police CPL records. The current pace of new applicants suggests that the number will exceed one million CPL holders later this year.

The number of Michigan CPL holders continues to increase year-over-year, and one reason is that Michigan became a CPL “shall-issue” state in 2001. Then, in 2015, Michigan County Clerk offices and the Michigan State Police became responsible for processing concealed weapon applications under Senate Bills 34 and 35 or Public Acts 3 and 4. This important change in Michigan’s CPL law did away with gun boards that included county sheriffs and prosecutors. With this change Michigan became a true shall issue state because now all applicants are approved provided they meet the statutory guidelines. One final change in 2015 included a reduction in processing time. Under Michigan’s CPL law, applications are to be processed within 45 days and if the paperwork isn’t processed within the 45-day-period applicants can use their application receipts received by the clerk’s office as proof of certification. However, applicants usually receive their CPLs in a much shorter time, often within a couple weeks.

Because Michigan is a shall issue state, provided an individual takes a one-day class, pays the application and fingerprint fee, and can pass a background check, they shall be given a CPL. Once a valid CPL is obtained, it remains valid for five years, and the CPL holder can lawfully carry a concealed pistol anywhere not otherwise precluded by law. These so-called gun free zones include such things as sports arenas, schools, courts, post offices, banks, places of worship, day care centers, etc. The State is required to create an on-line CPL renewal process by October 2018.

Oakland County Work Release Not Open to Felony Drunk Drivers

Published on: April 11, 2018 | by Patrick Barone

Because an at-home electronic-monitoring program is not incarceration, the Oakland County Michigan work release program is not open to some felony offenders. Where mandatory incarceration is concerned, the tether program is a restriction, not a confinement, and is not ‘jail’ as that term is commonly used and understood.

In 2010 the Oakland County Jail adopted a “virtual” work release program which employs a GPS tether that tracks the whereabouts of an individual and allows them to leave their home for certain court-approved reasons, including employment. These whereabouts are monitored and tracked by the Oakland County Sheriff. The Michigan drunk driving felony statute, found at Michigan Compiled Laws § 257.625 requires that offenders serve a minimum of 30 days in jail. Specifically, the law indicates:

A person who violates this Michigan’s drunk driving laws three times in their lifetime is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following: Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years or probation with imprisonment in the county jail for not less than 30 days or more than 1 year. This term of imprisonment shall not be suspended.

Oakland County Jail’s Virtual Work Release Program

Published on: April 11, 2018 | by Patrick Barone

Beginning in early February 2010, “virtual” work release is available for some offenders. After the new program starts, the traditional work release program will be eliminated. This significant change has the potential to impact criminal law sentence negotiation and overall sentencing practices throughout Oakland County.

Virtual work release will consist of an ankle tether using a satellite and radio global positioning system (GPS) monitored by the Oakland County Sheriff. It will give the Sheriff’s Office the ability to carefully track an inmate’s location twenty-four hours a day, seven days a week. The radio technology will even allow a defendant to be tracked inside a home or workplace.

The eligibility for the new program has not changed. Accordingly, a judge must authorize participation prior to enrollment in the virtual work release program and offenders sentenced on any CSC charge are not eligible. Also, there may be no outstanding warrants, holds, or unpaid bonds.

Criminal Consequences of Statue Vandalism in Michigan

Published on: March 31, 2018 | by Patrick Barone

Many people view vandalism as a youthful indiscretion. The Sparty statue on the grounds of Michigan State University is the target of vandalism nearly every year during rivalry week. And in 2015, so was the Magic Johnson statue on the school’s grounds.

But while these may seem like harmless pranks by the college kids involved, Michigan has also seen its fair share of hate vandalism. One example is when someone painted offensive, derogatory remarks on a statue outside of Muskegon High School.

And this type of vandalism, along with the seemingly harmless pranks, can have offenders facing fairly serious consequences under Michigan’s willful and malicious destruction of property laws.

Legality of Recording Police Officers in Michigan

Published on: March 31, 2018 | by Patrick Barone

Recent stories of police misconduct have led to many citizens recording police activity. They often do so to prove the police officer acted inappropriately. But is it legal?

The short answer is yes, but it depends on where the conversation or activity is taking place. In Michigan, there are two laws that deal with the recording of any conversation or activity, even those involving the police. The first is a wiretapping law stating it is illegal to willfully or maliciously wiretap an electronic device including a smartphone or computer to record activity or a conversation. This is a felony that carries a sentence of up to two years in prison and/or a fine of $1,000 but it is not the type of recording most people consider when they record the police.

These situations typically include videotaping or recording a police officer dealing with a member of the public. And this would fall under Michigan’s eavesdropping law. Under this law it is illegal for any person to record a private conversation or use a device that can help them listen in on a private conversation taking place between other people. This is also a felony that could carry a sentence of up to two years in prison, and/or a fine of $2,000. But the key word within this statute is private.

What are the Mandatory and Permissive Terms and Conditions of Probation in Michigan?

Published on: March 23, 2018 | by Patrick Barone

When thinking about the mandatory terms and conditions of probation it’s important to first understand that, according to Michigan Compiled Laws, section 771.4, the granting of probation is a matter of grace. In other words, probation is a privilege, not a right.

Furthermore, this legislative idea of probation being a matter “grace” extended to you by the court is further expressed in Michigan Compiled Laws, section 771.1, which indicates that to be placed on probation, the court must first determine that you are not likely to again engage in any offensive or criminal conduct. Additionally, the court must believe that the public good does not require that you “suffer the penalty imposed by law,” meaning the public good does not require the court to sentence you to jail or prison.

If you are “lucky” enough to be given a term of probation, Michigan Compiled Laws 771.3 sets forth all of the mandatory conditions of probation. This list includes the following:

Man Wrongfully Arrested for DUI in Police Cover-Up Awarded Almost a Million Dollars

Published on: March 19, 2018 | by Patrick Barone

According to articles reported in the NY Daily News, in April 2015, Oliver Wiggins was struck by a police cruiser that had run a red light. Instead of offering Mr. Wiggins an apology, however, Brooklyn Police arrested him for drunk driving! A breath test later revealed that Wiggins had consumed no alcohol, and the EMT and DWI technician involved in the arrest both indicated that Mr. Wiggins showed no signs of intoxication. Despite this, the official narrative police report, prepared by City of Brooklyn Police Officer Justin Joseph, indicated that Mr. Wiggins had red watery eyes, slurred speech, an odor of alcohol on his breath and was swaying. Mr. Wiggins, a native of Jamaica, claims all of this was false and was only part of an effort by Officer Joseph to cover up for his own wrongdoing!

The prosecuting attorney eventually dismissed the charges against Mr. Wiggins, but Mr. Wiggins still lost his license and had a large repair bill on his car. His insurance company refused to cover the accident because of the DUI arrest. Additionally, Mr. Wiggins’ lawyer claimed that he suffered an injury to his wrist.

Because of the wrongful arrest, Mr. Wiggins hired a lawyer to sue the City. Later, and ostensibly and euphemistically to only “avoid trial,” The City of Brooklyn paid out nearly One Million Dollars in damages! The worst part of all this is that the officers involved in this egregious abuse of power are still out there on the street making arrests. They have not lost their jobs nor have any charges been filed against them.

Can my Spouse Keep Their Guns If I’m on Felony Probation?

Published on: February 22, 2018 | by Patrick Barone

Probably not. If you’ve been convicted of a felony in Michigan, then your gun rights will be suspended for three to five years, depending on the type of felony. The suspension time periods start when you’re done with your felony probation and it is also likely that the sentencing Judge addressed this issue at the time you were sentenced and made the non-possession of firearms an explicit condition of probation. For a more detailed explanation, let’s look at what the law provides.

The law that covers this issue is found at Michigan Compiled Laws § 750.224f, which provides as follows:

A person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all the following circumstances exist: (a) The person has paid all fines imposed for the violation. (b) The person has served all terms of imprisonment imposed for the violation. (c) The person has successfully completed all conditions of probation or parole imposed for the violation.

State Paying Forensic Science Lab $250 for Each DUI Conviction Obtained

Published on: February 15, 2018 | by Patrick Barone

In Tennessee, a person convicted of DUI would be ordered to pay a “Blood Alcohol or Drug Determination Test (BADT)” fee as part of their court costs. No BADT fee was charged where a case was dismissed, a not guilty verdict returned, or where a defendant pled to a non-DUI related offense. Then, according to Tennessee law, the BADT fees collected were paid ultimately to the Tennessee Bureau of Investigation where they were used for all TBI agency operational costs. The blood testing portion of these fees had recently been increased to $250.00, and the Tennessee forensic lab relied on these BADT fees, and the recent increase, to fund the largest portion of their operating expenses. This is all written in past-tense language because a Tennessee Court of Appeals has recently ruled that this practice was unconstitutional. Specifically, the court found:

Because the money from the $250 BADT fees is placed directly in the intoxicant testing fund which is “designated for exclusive use by the TBI,” there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions. The TBI forensic scientists also have a financial interest in securing convictions because the collection of the BADT fees affects their continued employment and salary, which gives them an incentive to find that defendants’ blood alcohol content is 0.08% or higher.

There are many interesting things about this opinion, not the least of which is the fact that it lays bare the assertion by the States that their forensic labs are independent. In Michigan for example, the lab techs that test blood samples for alcohol proudly testify that they care not what the results are because they only care about the integrity of the science they employ. In other words, they attempt to hide behind a veil of scientific objectivity. This is a great sound-bite for the jury but that does not make it true.

New Police Video Recorder Captures Evidence of Intoxication in Driver’s Eyes

Published on: February 9, 2018 | by Patrick Barone

Michigan’s intoxicated driving laws cover intoxication by alcohol and all impairing drugs. Reliably detecting intoxication by drugs is more challenging for law enforcement than detecting intoxication caused by alcohol. One reason for this is that there is no roadside drug test that can help officers in the field determine the cause of impairment, and to distinguish drug-induced impairment from that caused from more benign causes such as sleep deprivation or certain medical conditions.

It is well-established for example, that alcohol can cause nystagmus, which is a jerking of the eye as it moves across a horizontal plane. Because of this correlation, the horizontal gaze nystagmus test, which looks for this jerking in the eye, is one of the three standardized field sobriety tests. This alcohol inducted jerking is easy to detect, and police officers around the country can testify in court about their observations during the HGN provided it the test is properly administered. The HGN is also part of the 12-step drug recognition protocol because some drugs other than alcohol can also cause nystagmus. However, a limitation for both prosecutors and defense attorneys is that police patrol vehicle video recording equipment is not able to record the nystagmus that officers ostensibly observe.

A novel solution to this need for a reliable roadside test for drugs, and the limitations of no HGN recording, has been developed and involves recording and analyzing the movement of a person’s eyes. This technology is currently undergoing a new round of funding and Michigan drivers may be subjected to it in the near future. As of the date of this article this technology is being used in Colorado, California, and Tennessee.

Michigan Criminal Defense Law Blog