Articles Posted in Courts

A gun conviction can carry extremely severe immigration consequences for persons that are not United States citizens.  INA section 237(a)(2)(C) makes convictions under federal, state, and local laws for firearms offenses deportable.  The list of offenses that fall under this provision is very broad.  Even very minor firearm convictions, such as negligent discharge of a gun, brandishing a pistol, unlawful transport of a firearm, etc., can all potentially lead to deportation.  Many firearms offenses (not all) are considered to be aggravated felonies that can lead to deportability, inadmissibility, and denial of adjustment of status.  One such offense that is noteworthy is the possession of a firearm by an illegal alien or an alien in non-immigration status (see 18 USC section 922(g)(5).  Also, if a sentence of 1 year or more is imposed on a crime of violence conviction, it is also considered to be an aggravated felony (see INA section 101(a)(43)(F).

Is it ever legal  for aliens to possess firearms?  In some limited cases, yes.  An alien who has been lawfully admitted to the United States under a non-immigration visa who is admitted to the United States for for lawful hunting or sporting purposes, or is in possession of a hunting license or permit lawfully issued in the United States may possess lawful firearms under 18 USC section 922(y)(2)(A).  Lawful Permanent Residents (green card holders) can also possess firearms as long as they follow the applicable state, federal, and local laws to do so.  Even an alien or green card holder that lawfully possesses or uses a firearm may run into trouble with their immigration status for firearms related violations.  It is advisable that an alien or green card holder who wants to possess or use firearms consult with a lawyer, and receiving the proper training, so he or she specifically understand what the law requires.  Again, even a relatively minor gun violation can result in catastrophic immigration consequences.

Deportability for a firearms offense will trigger mandatory detention.  This means that a non citizen who is in immigration proceedings for a firearm related conviction will be held in immigration custody while removal proceedings are pending (see INA section 236(c)(1)(B).  An immigration judge will be without jurisdiction to set a bond when mandatory detention applies.

In Michigan the of driving while license suspended, revoked, or denied (DWLS) is a misdemeanor that carries for a first offense a maximum jail sentence of 93 days and a fine of not more than $500.  A conviction for this offense will result in a suspension of driving privileges.  It is not common for a person who is charged with DWLS to claim that they did not know that there license was suspended at the time.  This situation is completely possible.  Reasons for this may be the person believed that a family member paid or handled the ticket for them, they were not told that they had to pay a clearance fee on the ticket to reinstate driving privileges when they paid a ticket, somebody else used their name or identification while driving, they never received a notice from the Court or Michigan Secretary of State that the license was suspended.

It does not seem fair that a person could have a misdemeanor offense permanently affixed to their criminal and driving record when there was no intent to break the law.  A conviction for DWLS is permanently affixed to a criminal record, because DWLS (pursuant to MCL 257.904) is written under the Michigan Vehicle Code, and offenses under the Michigan Vehicle Code are not subject to expungement.  It is rather sad because this isn’t really even a case of ignorance of the law (which is never a defense), but more of the ignorance of an important fact that lead to a criminal charge.  Had the person known of this important fact, in many cases the individual would have either not driven or took the steps necessary to have the driver’s license status corrected or restored so the offense would never have occurred.

What does Michigan law say as it relates to intent?  According to Michigan Criminal Jury Instruction 15.20 the prosecution has 4 elements that it must prove beyond a reasonable doubt for a conviction to occur for the offense of driving while license suspended or revoked:

In most auto accident lawsuits on behalf of the person who was injured or killed, a lawyer will charge a contingency fee.  The lawyer’s fee is typically a standard one third  (33.3%) of the amount recovered, minus  costs and expenses.  Costs and expenses can include the following: filing fees; medical records; expert witness fees; private investigators; deposition fees; trial exhibits; mediation fees; etc.  These costs and expenses may be high, further reducing your potential recovery.  There also may be medical and other liens on the potential recovery that take even more money out of your pocket.  Auto accidents involving serious injuries can be life changing, and every penny that you can save is critical.

What can be done to increase the amount of  your potential recovery?

What if you could hire a great auto accident lawyer, who would take less than the standard one third referral fee?  A lawyer to attempt to broker a lower fee for you at the beginning of the case is the answer.

In Michigan, pursuant to MCL 712A.2(a)(1) the family court has jurisdiction for criminal prosecutions of minors under the age of 17; persons 17 years and older are considered to be adults for criminal law purposes.

However, there are certain serious offenses juvenile offenses that allow for the automatic jurisdiction of the adult court if committed by a juvenile who is 14 years or older and less than 17 years old pursuant to MCL 600.606.  These offenses are: Arson of dwelling/building (MCL 750.72); Assault with Intent to commit Murder (MCL 750.83); Assault with intent to Maim (MCL 750.86); Assault with intent to Rob (MCL 750.89); Attempted Murder (MCL 750.91); First Degree Murder (MCL 750.316); Second Degree Murder (MCL 750.317); Kidnapping (MCL 750.349); First Degree Criminal Sexual Conduct (MCL 750.520b); Armed Robbery (MCL 750.529); Carjacking (MCL 750.529a); and Bank Robbery (MCL 750.531).  Also, the juvenile is treated as an adult for Assault GBH (MCL 750.84) and Home Invasion (MCL 750.110a) if the juvenile was armed with a dangerous weapon at the time of the offense.  Escape from a juvenile facility under MCL 750.186a can be the basis of automatic waiver, depending on the juvenile’s classification level.   Certain drug manufacture/delivery offenses (MCL 333.7401(2)(a))(1) and Possession of larger quantities of controlled substances (MCL 333.7403(2)(a)(1)) will result in jurisdiction with the adult justice system.  The procedure when a juvenile is charged as an adult for one of these serious offenses is called an automatic waiver.

For other offenses in which the alleged crime occurred when the accused was under the age of 17, but at the time of prosecution is over the age of 17 years, there is a process for that.  The family court conducts a waiver hearing.  See MCL 712A.3(1); MCL 712A.4(1), MCR 3.950(A) – (C).

There are times when a person may have an advantage hiring a local criminal lawyer, and other times when an outside is probably needed.

When should I hire a local criminal defense lawyer:

  1.  When cost is an issue, a local lawyer may charge a lesser rate because there is not as great of a distance for the lawyer to travel.  Hence, the time and expense of commuting to court can be factored into the fee the lawyer charges;

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In Michigan when an individual is charged with probation violation the Court can either issue a summons directing the probationer to appear before the Court or issue an arrest warrant.  The Court has an obligation under Michigan Court Rule 6.445 to make sure that the probationer receives written notice of the alleged violation.

When the probationer appears before the Court, the Judge must advise the probationer that he or she has a right to a contested hearing.  The probationer has a right to retain counsel to defend him or her at the contested hearing, and may petition the Court for a public defender if the probationer is financially unable to afford a lawyer.

The probationer has the option to admit to the probation violation instead of having a contested hearing.  If the probationer pleads guilty, he or she gives up the following rights:

Michigan Compiled Law 333.16243(1)(c) permits the Michigan Department of Licensing and Regulatory Affairs to request and receive from Courts information concerning a felony or misdemeanor conviction against a nurse.  Pursuant to MCL 769.16a(7) the Court is required to report within 21 days a convictions related to the legal delivery, possession, or use of alcohol or a controlled substance.  This applies to any health care professional who is licensed or registered in Michigan including doctors, nurses, dentists, pharmacists, chiropractors, pathologists, therapists, etc.

In Michigan there are laws that are intended to protected patients in health care facilities.  Even if the offense is not related to employment, there are certain convictions that act as a permanent bar to employment in a health care facility and other convictions that act as a temporary bar to employment in a health care facility.

Michigan Compiled Law 333.20173a prevents a “covered facility” (nursing homes, hospices, home health agency, county medical care facility, home of the aged, hospital with swing bed services) from employing, independently contracting, or granting clinical privileges to persons as follows:

Most people have never had to go through the experience of hiring a lawyer.  When arrested for retail fraud, sometimes it is difficult to determine the next step to take.  Obviously a lawyer is a top priority, but the question becomes which lawyer to hire.  Finding and choosing a lawyer can seem overwhelming, especially when dealing with the emotions and uncertainty of having to contend with a shoplifting allegation that may have been rightfully or wrongfully brought.  The following list may be helpful:

First, consider the location of where the offense is alleged to occur.  In many instances it is a good idea to hire a lawyer who is familiar with the Judges and prosecutors that you will eventually need to contend with.  The proximity of the lawyer’s office to the courthouse is often a good sign that the lawyer frequently appears at the courthouse.  The familiarity the lawyer has with the prosecution and the Judges often provides the lawyer with the right insight to negotiate a great resolution for a fair resolution and sentence (if a conviction occurs).

Second, consider the reputation and experience of the lawyer.  Even though the lawyer may practice in front of certain Judges or have cases with certain prosecutors it does not necessarily mean that the lawyer is good at what he or she does.  Online reviews from law related sights such as www.avvo.com is a good place to start.  The length of time a lawyer has practiced can affect the result you obtain.  A younger lawyer may be eager and energetic, but lack the skills and abilities that a seasoned lawyer has.  Experience often matters.

May people have questions when they receive a ticket in from a police officer or in the mail.  The first question usually is how can the ticket be taken care of.  When tickets are issued the officer will indicate the “Type” of ticket issued           ( usually in the middle portion of the ticket).  The choices under “Type” include the following “C/I” (civil infraction); “Misd” (misdemeanor); “Fel” (felony); “Warn” (warning); “Fug” (fugitive); and “Waiv” (Waivable).

“Warn” (warnings) are just that.  They do not require any further action on behalf of the person issued the ticket

“C/I” (civil infraction) can be handled by either paying the ticket before the appearance date that is indicated on the ticket.  The person issued the ticket has the opinion to challenge the ticket at a hearing.  Many people who receive moving violations (for example: speeding; disobey traffic control device, etc.) choose to challenge the ticket to try and avoid points and to try and avoid having the ticket appear on the person’s driving record.  The person issued the ticket can elect to schedule a formal or informal hearing with the court.  Formal hearings often occur when the person issued the ticket hires a lawyer to contest the ticket (which is often a smart decision).  At a formal hearing the ticket can either be contested in front of the Judge or the parties reach a resolution of the ticket (which on many occasions involves a reduction).  Informal hearings involve only the person issued the ticket, the police officer who issued the ticket, and a magistrate.  Informal hearings often place the person who was issued the ticket at a disadvantage because  the magistrate likely has a regular familiar relationship with the police officer, the person issued the ticket more likely than not has no relationship with the court, and the District Court relies upon the money it collects from tickets as part of its operating budget.  Hence, the chance of prevailing at a informal hearing in many courts is low.

In Michigan once a ticket for Retail Fraud (also known as shoplifting or retail theft) is issued, or a criminal charge is filed (or sworn to) at the district court, the first court date is known as the arraignment.  There are several things that occur at an arraignment.

First, the Defendant is advised of the charge and potential penalty.  When it comes to Retail Fraud, there are a few potential charges that a Defendant could face:

  1. Retail Fraud ordinance violation.    This offense involves an alleged theft, or attempted theft, of merchandise from a store offered for sale while the store is open for business.  The maximum allowable sentence for this offense is 93 days in jail.  Ordinance violations are prosecuted by a city/township/village, or a lawyer/law firm that represents a city/township/village.