Courts

April 5, 2012

Failure to Stop at an Accident

In Michigan, pursuant to Michigan Compiled Law 257.617, the driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private property that is open to travel by the public shall remain there until the driver gives his or her name and address, the registration number of the vehicle he or she is driving, the name and address of the owner of the vehicle, to a police officer, the individual struck, or the driver or occupants of the vehicle with which he or she has collided. The driver must also show his or her driver’s license to the aforementioned people as well. If there is anyone injured in the accident the driver must give reasonable assistance in securing medical aid or arranging for the transportation of any injured person. If there is a reasonable and honest belief that remaining at the scene will result in further harm, the driver must immediately report the accident to the police. When a driver collides with a vehicle that is either attended or unoccupied, the driver has the responsibility to locate and notify the owner of the vehicle with the name and address of the driver. If the owner cannot be located, the driver has the duty to report it to the nearest police officer. The same is true if the driver collides with property on or adjacent to a highway, such as a telephone pole or a road sign.

Failure to stop at an accident is also referred to as hit and run. Oftentimes it is the result of one car tapping another. Sometimes it is difficult to distinguish if damage to another car was caused by tapping the other car, or if the damage previously existed. Basically, according to the law, when in doubt you need to error on the side of caution and immediately report the accident.

Why do you need to retain a lawyer for this offense? Failure to Stop at an Accident is a 90 day misdemeanor with a possible fine of up to $100. When a minor injury occurs during the accident the offense is still a misdemeanor charge, however it carries a maximum possible punishment of up to 1 year in jail, a fine of up to $1,000, or both. If the Failure to Stop at the Scene of the Accident Results in Serious Impairment of a Body Function or Death, the offense becomes a felony punishable for more than 5 years in prison, a fine of not more than $5,0000, or both. When the Failure to Stop at the Scene of the Accident Results in Death and the Driver is at Fault, the charge becomes a 15 year maximum felony with a possible fine of up to $10,000. Conviction for any of the aforementioned offenses also results in 6 points on the driver’s driving record, driver’s responsibility fees, potential loss of driving privileges, and assuredly higher insurance rates for those still with driving privileges. There is also the possibility of restitution and/or a civil lawsuit anytime a driver or passenger is injured in any type of an accident.

March 29, 2012

Top 50 Felony Offenses in Michigan

by Hilf & Hilf, PLC

An article in the March 2012 Michigan Bar Journal, authored by retired Circuit Court Judge John Hammond, listed the 50 most frequently occurring felony offenses in Michigan. They are listed in order from the most common to the least common, however the list only reflects a fraction of the total number of possible felonies in Michigan.

1. Possession of a Controlled Substance less than 25 Grams (Cocaine/Narcotic)

2. Manufacture or Delivery of Less than 5 Kilograms of Marijuana

March 28, 2012

Attorney for Crime Victims

by Hilf & Hilf, PLC

In many instances a victim pursues a criminal case with vigor and determination to receive justice, and will stop at nothing to have his or her position heard and advanced. In Michigan a victim has an absolute right to be heard, informed, and consulted with as to the prosecution of the Defendant. A victim has a right to hire a lawyer to advocate on his or her behalf.

On many occasions a victim regrets the decision to involve law enforcement with an argument or dispute that arose with a wife, husband, fiancée , mother, father, son, daughter, other family member, or friend. In most cases in Michigan the position of the Prosecutor or city attorney is that they represent the People of the community, and protect the community in general from harms or disturbances of the peace. A criminal case is never entitled the name of the victim versus the name of the Defendant – it is always the People or City versus the Defendant. Even when the victim strongly tells the Prosecutor and police that they wish for the matter to be dismissed, the desire of the victim is often not followed.

When a victim’s position is contrary to the Prosecution and police, this is a good time to retain an experienced lawyer. Victims are often met with disrespect and threats of what will happen if he or she fails to cooperate with the prosecution of the case. The Court itself will sometimes try to place pressure on the victim and the Defendant by establishing stringent bond conditions, such as no contact between the Defendant and the victim with a delay before the next Court hearing. A no contact provision can create a real hardship, often causing monetary (such as the cost for the Defendant to live in a hotel or elsewhere), emotional, and child care issues.

March 26, 2012

Financial Transaction Device – Unlawful Sale, Use, or Possession.

by Hilf & Hilf, PLC

In Michigan there are several crimes related to credit card fraud, debit card fraud, and gift card fraud or point of sale fraud that are commonly prosecuted. The above mentioned items are also referred to in Michigan as financial transaction devices. Even the possession of someone else’s account number, credit card number, PIN (personal identification number), personal account, or business account can be prosecuted when possessed fraudulently to obtain money, a refund, or credit for goods, services, or other things of value under certain circumstances.

The most common financial transaction device fraud or credit card fraud case in Michigan is for stealing, taking, removing a financial transaction device from the deviceholder. MCL 750.157n(1) provides that a person who steals knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony. This crime carries a maximum possible punishment of up to 4 years in prison.

There are sophisticated financial transaction device crimes that involve devices that are fraudulently made or altered to duplicate a legitimate credit card, debit card, or gift card. Under MCL 750.157n(2) a person who knowingly possesses a fraudulent or altered financial transaction device is guilty of a felony. There is a market for selling, trading, or otherwise giving away financial transaction device. According to MCL 750.157p a person who has in his or her possession, or under his or her control, or who receives from another person a financial transaction device with the intent to use, deliver, circulate, or sell the financial transaction device, or to permit, cause, or procure the financial transaction device to be used, delivered, circulated, or sold, knowing the possession, control, receipt, use, delivery, circulation, or sale to be without the consent of the deviceholder, is guilty of a felony. The person who with intent to defraud, forges, materially alters, simulates, or counterfeits a financial transaction device is guilty of a felony under MCL 750.157r. All of these crimes carry a maximum possible penalty of up to 4 years in prison.

March 19, 2012

Top 10 Ways to Afford a Criminal Lawyer

by Hilf & Hilf, PLC

Hiring a criminal defense attorney for legal representation for yourself, a family member, or a friend for a criminal arrest or criminal allegation is sometimes is very difficult. The hardest part is often that it is an unexpected expense which usually comes at the worst possible time. Under the best of circumstances, money is available to retain the criminal defense lawyer for the agreed upon amount and the issue of ability to pay is not an issue. This, of course, is not always the case. The attorney fee charged varies between lawyers, and usually the amount to retain the lawyer contemplates the complexity of the matter, the time commitment involved, the inability of the lawyer to handle other matters due to the time commitment, and the reputation and experience of who you hire. That being said, there are several payment options which may make experienced criminal defense legal representation more affordable than you think:

First, payment plans are sometimes available, however the attorney will always need enough of a down payment to enter an appearance and appear on the case;

Second, credit card payments are sometimes a solution;

March 16, 2012

Possible Criminal Defenses

by Hilf & Hilf, PLC

Not all defenses to crimes in Michigan are discussed in this blog. Some of these defenses do not apply to certain offenses, or may not be allowed by a trial Court based upon case law and judicial interpretation. You should always seek the advice of an experienced attorney such as Attorney Daniel Hilf as to which, if any of these defenses, are applicable to your situation. The defenses are listed in alphabetical order.

Abandonment and Renunciation – These are affirmative defenses. Voluntary abandonment is when the Defendant repents or has a genuine change of heart. Abandonment is not voluntary when the Defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, circumstances which increase the probability of detention or apprehension, or when the Defendant decides to postpone the criminal conduct to another time or with a different victim. Abandonment that is not voluntary is not a defense to the crime. Voluntary abandonment requires the Defendant to show by a preponderance of the evidence that he or she gave up the idea of committing the crime. It must be a choice of free will, and the abandonment of the crime must be complete. Abandonment can occur at any time before the crime is actually completed or before it becomes impossible to avoid completing it (for example, you cannot argue abandonment of a murder after the victim has already been shot). Renunciation, pursuant to MCL 750.157b(4), states that it is an affirmative defense to a prosecution that under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that the conduct does not occur. The Defendant has the burden of proving this defense by a preponderance of the evidence. If the allegation is solicitation of a murder and the Defendant merely refuses to pay the hit man (expecting that the hit man would not go forward with the crime) does not meet the requirements of renunciation without contacting law enforcement or taking additional steps to prevent the crime.

Accident means that the Defendant did not intend to commit a specific crime, and that something occurred through a mishap or unexpectedly. For example, a Defendant could argue that an unintentional penetration occurred under what was normally a lawful activity such as changing a baby’s diaper, bathing a child, or a doctor performing a medical procedure. In Criminal Sexual Conduct cases the prosecution must prove beyond a reasonable doubt that the penetration was for a sexual purpose.

March 13, 2012

Prostitution

by Hilf & Hilf, PLC

In Michigan, there are a number of crimes related to Prostitution:

Engaging or Offering to Engage Services of Female (MCL 750.449a) provides that any male person who engages or offers to engage the services of a female person, not his wife, for the purpose of prostitution, lewdness, or assignation, by the payment of money or other forms of consideration, is guilty of a misdemeanor. Prostitution is not limited to sexual intercourse, and applies to a number of sexual acts. The penalty for this offense is a misdemeanor conviction that carries a possible jail sentence of up to 90 days or a maximum fine of $500, or both. This particular offense does not require registration as a sex offender under the Michigan Sex Offenders Registration Act. The possible penalty, if an automobile is involved, is vehicle forfeiture. The exception to this statute is that it does not apply to a police officer in the performance of his or her duties pursuant to MCL 750.451a. This offense is charged as either a local ordinance or under state law.

Some local communities and cities have a mandatory minimum sentence upon conviction. In Detroit, for example, this offense is prosecuted under a local ordinance that provides for a jail term upon conviction. An experienced criminal defense lawyer is often able to overcome this harsh result.

March 12, 2012

Extortion

by Hilf & Hilf, PLC

There are 2 different types of extortion under Michigan law: threats of harm; and threats to accuse another of a crime. The crime of Extortion carries a maximum possible punishment of up to 20 years in prison. Michigan Compiled Law 750.213 provides that “Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife, or child of another with intent thereby to extort money or any pecuniary advantage, whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his or her will, shall be guilty of a felony…”. Extortion threats must be written or stated – gestures alone are insufficient.

Any threats of extortion, if they coerce the alleged victim to submit to sexual penetration or sexual contact, are treated separately under Criminal Sexual Conduct laws. The penalty for this type of an offense is usually severe, but varies based upon the nature of the sexual act in question (See MCL 750.520 et al).

Typically, the Extortion does not cover threats where the act required of the victim is minor with no serious consequences to the alleged victim. A threat of harm in the future to an alleged victim if he or she speaks to the police about a crime committed against him or her, would constitute extortion. However, charging decisions are always within the discretion of the City Attorney, Prosecutor, or Attorney General. The involvement of an experienced criminal defense attorney in some instances may convince the Prosecuting authority that the act in question is of minor degree, or untrue, and that an Extortion charge should not be pursued.

March 12, 2012

Child Sexually Abusive Activity

by Hilf & Hilf, PLC

There are 3 different types of conduct in Michigan that constitute Child Sexually Abusive Activity:

First, pursuant to MCL 750.145c(2), creating child sexually abusive material through knowingly persuading, inducing, enticing, coercing, causing, or allowing a child to engage in child sexually abusive activity, or the producing, making, or financing of any child sexually abusive activity or material. This offense carries a possible penalty of up to 20 years in prison, or a fine of not more than $100,000, or both. Under the Michigan Sex Offenders Registration Act, this is a Tier II listed offense.

Second, pursuant to MCL 750.145c(3), distributing, promoting, or financing the distribution or promotion of any child sexually abusive material. This offense carries a possible penalty of up to 7 years in prison, or a fine of not more than $50,000, or both. Under the Michigan Sex Offenders Registration Act, this is a Tier II listed offense.

March 4, 2012

Criminal Sexual Conduct First Degree

by Hilf & Hilf, PLC

Criminal Sexual Conduct in the First Degree (MCL 750.520b), also known as CSC 1st Degree, is the most serious of all sex offenses in Michigan. Criminal Sexual Conduct in the First Degree can involve children or adults depending upon the circumstance, and always involve some form of rape or sexual penetration. The penalties for 1st Degree Criminal Sexual Conduct, upon conviction, are severe:

1) CSC 1st Degree carries a maximum sentence of up to life in prison. The minimum prison sentence will be lengthy due to quickly escalating sentencing guidelines which the Court will follow in almost all cases;

2) If the victim is younger than 13 years old, there is a mandatory minimum sentence of 25 years in prison;