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The information in this blog is general, and is not a substitute for consulting with a lawyer concerning the facts and circumstances of your or a loved one’s case.  Jurisdictions are not always consistent in the manner in which cases are processed and handled, and laws and procedures often change over time.  For any legal matter, contact an experienced lawyer immediately. 

When it comes to impaired driving in Michigan, marijuana cases are complicated.  Unlike some States, Michigan does not have a legal limit or cut off level to provide guidance to individuals in their decisions to operate motor vehicles.  Part of the reason for this is that [at the time this blog was written] the science behind THC body content and impairment does not have a precise correlation with each other.  Persons who are regular marijuana users may have a higher tolerance than an infrequent user.  Hence, unlike drinking and driving cases, there is not a legal THC blood alcohol limit to indicate a safer and legal ability to drive.

Under Michigan Compiled Law 257.625(1)(a) it is illegal to drive under the influence of marijuana.  This is even true for someone who took the steps to become a medical marijuana patient, and the analysis does not change because it is legal to use marijuana in Michigan under State law.  Under Michigan case law (People v Koon) it is not illegal for individual who is legally allowed to use marijuana to drive with marijuana in their system, as long as the driver is not under the influence of marijuana.  Bear in mind that it is never lawful for an individual to smoke or consume marijuana while driving.

Today (April 8, 2020) we received notice of approval of asylum concerning a case I successfully tried with attorney Sufen Hilf in December and January in Detroit Immigration Court.  It is not lost on us that we received this great news on a date when we would normally celebrate Passover in the evening with family gathered.

US Immigration and Customs Enforcement (ICE) chose not to appeal, and for over the past 6 months our client remained incarcerated like a criminal.  With the news received, our attention shifted toward obtaining transportation from the jail to someplace for him to go, which is not easy with this coronavirus quarantine era upon us.  Is it freedom to be released from a jail in the middle of nowhere, but have no way to get home?  Is freedom the same when you do not have a school, a job, an apartment, and country of birth to return to?  The friends and family that are always there for you are now under quarantine, and so you leave jail, but you are still isolated and you have to do most of the things you need to do on your own, just to get by.  For freedom I guess someone persecuted often gives up a lot to gain much more (if such gains and losses are even comparable).

Just like the Israelites finally tested freedom, so did our client.  Dayenu.  Just like the Israelites escaped persecution and imminent death, so did our client.  Dayenu.

For all felony and high court misdemeanors in State of Michigan court proceedings, the Judge is required to consider the applicable sentence guidelines.  Sentence guidelines are a formula that takes into consideration the Defendant’s prior record (Prior Record Variables), and characteristics of the conviction offense (Offense Variables).  Where the Prior Record Variables and Offense Variables intersect on a sentencing grid determines the recommended sentence guideline range.

An often asked question is whether or not the Judge is obligated to stay within the guideline range?.  The Michigan Supreme Court, in the case of People v Lockridge, 498 Mich 358 (2105), determined that deviations from the sentencing guidelines must be based upon reasonableness.  This changed the previously used judicial standard of substantial and compelling reasons to sentence outside of sentencing guidelines.  The standard under Lockridge gives the Judge much more discretion concerning the sentence he or she wants to impose.  The deviation from sentence guidelines basically needs to be both reasonable and proportionate for a Michigan appellate court to uphold the sentence outside of the guidelines that is imposed.  There are other limitations that a Court may have when it comes to sentencing, including: 1) the minimum sentence imposed cannot exceed 2/3rds of the maximum sentence; 2) if the Defendant has a Cobbs agreement (and has not violated any conditions set forth by the Court relative to the Cobbs agreement), the Court must give the Defendant the ability to withdraw his or her plea if the sentence the Judge wants to impose exceeds the Cobbs agreement; 3) sometimes the Defendant and Prosecution enter into a Killebrew agreement, which is essentially a sentence bargain.  Generally, if the Court is not willing to honor the terms of the Killebrew agreement the Defendant has the ability to withdraw his or her plea and go to trial.

So getting back to the question at hand, what does it mean that the deviation must be reasonable and proportionate?  Basically, the Court is obligated to provide adequate reasons for the extent of the deviation from the guidelines.  The Judge is allowed to depart from the sentence guideline range when the guideline range is disproportionate to the seriousness of the crime.  In this determination the Judge must take into account the nature of the conviction offense or offenses and the background of the Defendant, and the applicable sentence guideline range.  There are several factors related to this assessment, including: 1) the seriousness of the conviction offense or offenses; 2) factors that were inadequately considered by the sentence guidelines, such as [but not limited to] the relationship between the Defendant and the victim, any misconduct by the Defendant while in custody, the Defendant’s remorse, and the Defendant’s potential for rehabilitation (see People v. Steanhouse, 313 Mich App 1 (2015)).  The Judge is also allowed to consider protection of society as a reason to go higher than the recommended guideline range (see People v. Armstrong, 247 Mich App 423 (2001).  The Judge should consider the guideline range when justifying the proportionality of a deviation from it.

The Life Employment and Skills Program (LESP) is a program for Oakland County Jail inmates to address their criminal conduct and any substance abuse issues.  Inmates that are accepted into the program meet for 90 minutes over a period of 6 weeks for felony offenses, or for 90 minute sessions over 4 weeks for misdemeanor offenses.  For misdemeanor offenses, the Defendant must be sentenced to a minimum of 60 days in jail in order to participate and cannot have an assaultive record.  Upon completion of the program the inmate receives a 25% reduction in his or her jail sentence.  The focus of LESP is to teach the inmate new ways of thinking, to achieve self control, understand distortions in thinking, and identify patterns of criminal behavior.   There is no charge for an inmate’s participation in LESP.

The sentencing judge has to agree with the placement into LESP and the inmate must meet eligibility requirements.  Certain conviction offenses (many assaultive and sex related offenses)  render an individual ineligible to participate.  Eligibility is determined by the Central Intake and Assessment Unit of the Oakland County Jail.  Effective advocacy by an experienced criminal defense lawyer, such as the lawyers at Hilf & Hilf, PLC, may help convince the sentencing Judge and Probation department that a particular person should be placed in the Life Employment and Skills Program as part of their jail sentence.  A 25% reduction in a jail sentence can potentially shave off months of incarceration from a Defendant’s sentence and is well worth pursuing whenever a jail sentence is likely to occur.

A misdemeanor in Michigan is a violation of penal law which is not a felony, or a violation of a state agency, that is punishable by imprisonment, probation, and/or a fine.  A misdemeanor can be charged under Federal law, State law, or by a local ordinance.  The penalty is determined by the particular federal statute, Michigan Compiled Law, or local ordinance in question.

Federal misdemeanor penalties are determined by the Federal Statute in question, and are addressed in Federal Court by Federal Prosecutors.
For State law misdemeanor violations in Michigan, most carry a maximum punishment of either 90 days, 93 days, 6 months, or 1 year depending upon the particular offense involved.  The Michigan Compiled Laws contain the potential maximum penalties for all State law criminal offenses.  There are also offenses in Michigan called high Court misdemeanors which carry a maximum punishment of up to 2 years in prison (unless the maximum sentenced is enhanced under an applicable Habitual Offender statute which increases the maximum possible punishment).  State law misdemeanor violations that accompany a felony charge (for example, a DUI charged at the same time as a Fleeing and Eluding Police felony), are usually ultimately resolved at Circuit Court along with the felony charge (if the matter is bound over).     A Defendant also has a right to a preliminary examination for any high court misdemeanors for which he or she is charged.  State law misdemeanor violations are usually prosecuted by the County prosecutor’s office for the jurisdiction in which the offense allegedly occurred.

The police officer makes an arrest in Michigan when he or she determines that there is probable cause that a crime has been committed.

For petty or minor offenses the police officer may release the individual on their own personal recognizance with instructions to contact the Court for an arraignment date or that they will be contacted at a later date with a Court date.  Sometimes an interim bond is allowed to be posted with the arresting police agency prior to arraignment.

For more serious offenses, or sometimes due to local policies, the person arrested is not given a bond until he or she is arraigned in front of a magistrate or Judge.  If the person is taken into custody at the police station or county jail, he or she is booked and fingerprinted.  The person accused usually has an opportunity to make a telephone call from the police station or county jail to a family member if he or she is detained.  When a family member calls from jail it is important not to discuss the details of the case in as much as the phone call is usually recorded or monitored.  Your first step is to hire an experienced criminal defense lawyer.

Identity Theft and Identity Fraud crimes in Michigan involve the unlawful use of the financial information of another person or company in a fraudulent manner. It is an offense that is treated seriously by Courts in because it harms a victim financially, often ruins or damages the victim’s credit, and sometimes wrongfully results in harassment from debt collectors. The common causes of Identity Theft are: stolen checks, stolen credit cards, stolen mail, consumer fraud by a waiter or clerk, internet scams, computer viruses, phishing email or text messages. Identity Theft accusations can be as simple as falsely filling out a credit application in someone else’s name, or the accusations can be elaborate multistate and multi country conspiracies in which there are falsely manufactured credit cards. The schemes can become so elaborate and convincing that persons without criminal intent are unknowingly tricked into participating.

In Michigan, Identity Theft is a 5 year maximum felony offense. There are sometimes interrelated charges such as fraudulent possession of a Financial Transaction Device, Uttering and Publishing, and Forgery that are also prosecuted. A conviction for Identity Theft can also carry a significant restitution award to the alleged victim. In Michigan the statute concerning Identity Theft, MCL 445.65, provides that: a person shall not do any of the following: with the intent to defraud of violate the law, use or attempt to use the personal identifying information of another person to do either of the following: obtain credit, goods, services, money, property, a vital record, a confidential telephone record, medical records or information, or employment OR commit another unlawful act. It is also unlawful, in Michigan, for an individual by concealing, withholding, or misrepresenting the person’s identity, to use or attempt to use the personal identifying information of another person to do either of the following: Obtain credit, goods, services, money property, a vital record, a confidential telephone record, medical records or information, or employment OR commit another unlawful act.
MCL 445.63(o) defines personal identifying information as a name, number, or other information that is used for the purpose of identifying a specific person or providing access to a person’s financial accounts, including, but not limited to, a person’s name, address, telephone number, driver license, or state personal identification number, social security number, place of employment, employee identification number, employer or taxpayer identification number, government passport number, health insurance number, financial transaction device account number or the person’s account password, stock or other security certificate or account number, credit card number, vital record, or medical records or information.
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