Articles Posted in Courts

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.

The Michigan Center for Forensic Psychiatry (also referred to as the Forensic Center) is located at 8303 Platt Road in Saline, Michigan 48176.  The Forensic Center performs several functions for the State of Michigan.

The Forensic Center conducts evaluations of both male and female Defendants that are charged with crimes that are allegedly mentally ill.  The court with jurisdiction over the Defendant will make a referral for a forensic evaluation upon a motion made by the Defense, the Prosecution, or the Court itself.  For persons not in custody, paperwork is usually sent to the Defendant’s lawyer indicating the date and time of the evaluation, and the Defendant is responsible to provide his or her own transportation to the Forensic Center.  For persons in custody, transportation is arranged by the jail.  Evaluations usually take a couple hours and involve compiling background information, diagnostic testing, and an interview.  The Forensic Center will also obtain releases from the Defendant to acquire records from hospitals, clinics, jails, courts, and other locations where the Defendant may have received treatment in the past to assist in the determination made.

Evaluations of Defendants involve two possible issues: Competency to Stand Trial, and Criminal Responsibility (also called legal insanity).  Sometimes referrals are made for both issues.

As the close of the prosecution’s case, a Defendant can request the court for a directed verdict in his or her favor.  What is a directed verdict?  Michigan Court Rule 6.419 indicates that during a criminal trial the defense or the court on its own  volition can consider after the prosecution rests or after the close of all evidence whether or not the evidence is sufficient to support a conviction.   The standard that the trial Court uses in this determination is to consider whether or not, in the light most favorable to the prosecution, that a rational Judge or jury could find beyond a reasonable doubt that the Defendant is guilty.  See People v Smith-Anthony, 494 Mich 669 (2013).  Hence, if this standard is met, there is a judgment entered in favor of the Defendant without any Judge or jury deliberations.

In a way it seems unfair, because the evidence is considered in the light most favorable to the prosecution even though the Defendant is “presumed innocent”.  Needless to say, these motions are infrequently granted.

I had a jury trial several years ago where my client was charged with assault and battery.  The proof that the prosecution introduced at trial was a hearsay statement  (admitted over objection by the Judge as an excited utterance) from the daughter of the complaining witness that the complaining witness yelled from another room that her boyfriend “David spit on me”.  The complaining witness did not appear at the trial to testify.  In my motion for directed verdict I told the Court that the offense of assault and battery required proof beyond a reasonable doubt of intent.  There are instances where you may speak with someone and spit unintentionally comes from the other person’s mouth (when I was a child there was an expression “say it, don’t spray it”).  The jury in this case would have to speculate, or guess, whether or not the alleged spitting was intentional or accidental which is improper.

On occasion, a person will be dissatisfied with the lawyer that represents them in criminal law proceedings.  The reasons someone wants to obtain a new lawyer are various.  Reasons to want to obtain a new lawyer include the following: my lawyer does not communicate with me (the lawyer does not return phone calls, emails, and/or text messages); my lawyer does not adequately address my questions; my lawyer will not provide me with discovery materials; my lawyer will not file motions that I think are appropriate; my lawyer does not fight on my behalf; my lawyer is not on my side; there has been a breakdown in the attorney-client relationship; the lawyer has a conflict of interest; etc., etc..

One of the main disadvantages of having a public defender is that the representation you receive is the luck (or un-luck) of the draw.  Generally, the Defendant has no choice in terms of the public defender assigned to the case.  The lawyer may or may not provide great representation.  The lawyer may or may not care about the result you obtain.  The lawyer may or may not try and get you to plead guilty, rather than go to trial, because a trial requires a lot more work.

When a Defendant wants a new lawyer, there are a couple ways to go about the issue.  The best way is to hire a lawyer that gives you the confidence that the case is being handled in a thorough, experienced, professional manner.  If you have the ability to hire a lawyer, take the time to figure out if you and your prospective lawyer are compatible.  Does the lawyer have the experience needed to handle the particular type of case that you have?  What is the reputation of the lawyer?  Does the lawyer seem to know his or her stuff?  Will the lawyer handle the case, or will it be assigned to an associate lawyer?

One of the more difficult defenses to establish in Michigan is the insanity defense.   To prove legal insanity the Defense must prove by a preponderance of the evidence (show that it is more probable than not true) that the Defendant was, at the time of the alleged offense, legally mentally ill and either lacked the substantial capacity to appreciate the wrongfulness of his or her conduct or unable to conform his or her behavior to the law (legal insanity 2 prong test).

Even though a preponderance of the evidence is not a high burden, juries do not like this defense.  Many people feel that each of us are responsible for our own actions, and there is a fear that the Defendant will not be held responsible or accountable for his or her actions.  One of the instructions of the court for a jury instruction is that lawyers and the Court cannot tell the jury what the possible penalty is for a crime, and a jury might have a mistaken assumption that if a verdict of “not guilty by reason of insanity” (also referred to as NGRI) is reached the Defendant will face no penalty because he or she was acquitted.  There is a fear by juries that the Defendant might pose a danger to the community (especially for a violent crime) and could harm another person without a finding of guilt.

Unfortunately a jury is not told that if a Defendant is found to be “not guilty by reason of insanity”, the Defendant is committed to the Center for Forensic Psychiatry for an initial period of 60 days during which time the Defendant is examined and evaluated regarding his or her mental health condition.  The Center for Forensic Psychiatry has the option to find that no further treatment is needed, which is not a common result.  The more likely result is that a psychiatrist and another medical doctor will determine that further treatment is necessary, and a petition is filed with a probate court to order further in patient treatment.

It is not uncommon for a minor to commit retail fraud (or shoplifting).  The reasons for this include: peer pressure; greed; the feeling of invincibility; psychological reasons; etc.; etc.   It is always upsetting for a parent to learn that their child got into trouble, and the range of emotions that a parent may feel may run from concern to anger to disappointment.

What to expect for you and your child when your child is facing a shoplifting allegation?

If your child was lucky, the store made a decision to not involve law enforcement.  If law enforcement was contacted, how the case is handled depends upon the age of your child.

Carrying a concealed weapon in Michigan is a felony offense that carries up to 5 years in prison, up to $2500 in fines, possible probation/parole with conditions, and forfeiture of the weapon.  A conviction for the same can affect your ability to lawfully purchase and/or possess firearms.  This crime can also be prosecuted as a federal law violation depending on the circumstances.

In many accusations concerning carrying a concealed weapon the accusation begins with a traffic stop.  The car is stopped for some sort of traffic violation such as speeding, defective equipment, a bad license plate, etc..  The police officer approaches and asks the driver for his or her name, registration and proof of insurance.  During the stop a search of the vehicle occurs due to the driver’s consent, the officer seeing in plain view some sort of contraband, smelling the odor of marijuana, a search incident to an arrest (driving on a suspended license, an active warrant, open intoxicants in the motor vehicle, etc.) etc..  During the course of the search a weapon is discovered.

What happens next?