Articles Posted in Crimes

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 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;

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.